OCTOBER TERM, 2001
Syllabus
CHEVRON U. S. A. INC.
v. ECHAZABAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 00-1406. Argued February 27, 2002-Decided June 10,2002
Respondent Echazabal worked for independent contractors at one
of petitioner Chevron U. S. A. lnc.'s oil refineries until Chevron
refused to hire him because of a liver condition-which its doctors
said would be exacerbated by continued exposure to toxins at the
refinery-and the contractor employing him laid him off in response
to Chevron's request that it reassign him to a job without exposure
to toxins or remove him from the refinery. Echazabal filed suit,
claiming, among other things, that Chevron's actions violated the
Americans with Disabilities Act of 1990 (ADA). Chevron defended
under an Equal Employment Opportunity Commission (EEOC) regulation
permitting the defense that a worker's disability on the job would
pose a direct threat to his health. The District Court granted
Chevron summary judgment, but the Ninth Circuit reversed, finding
that the regulation exceeded the scope of permissible rulemaking
under the ADA.
Held: The ADA permits the EEOC's regulation. pp.
78-87.
(a) The ADA's discrimination definition covers a number of
things an employer might do to block a disabled person from
advancing in the workplace, such as "using qualification standards
... that screen out or tend to screen out [such] an individual," 42
U. S. C. § 12112(b)(6). And along with § 12113(a), the definition
creates an affirmative defense for action under a qualification
standard "shown to be job-related and consistent with business
necessity," which "may include a requirement that an individual
shall not pose a direct threat to the health or safety of other
individuals in the workplace," § 12113(b). The EEOC's regulation
carries the defense one step further, allowing an employer to
screen out a potential worker with a disability for risks on the
job to his own health or safety. Pp.78-79.
(b) Echazabal relies on the canon
expressio unius exclusio
alteriusexpressing one item of an associated group excludes
another left unmentioned-for his argument that the ADA, by
recognizing only threats to others, precludes the regulation as a
matter of law. The first strike against the expression-exclusion
rule here is in the statute, which includes the threat-to-others
provision as an example of legitimate qualifications that are
"job-related and consistent with business necessity." These
spacious defensive categories seem to give an agency a good
deal
74
Syllabus
of discretion in setting the limits of permissible qualification
standards. And the expansive "may include" phrase points directly
away from the sort of exclusive specifications that Echazabal
claims. Strike two is the failure to identify any series of terms
or things that should be understood to go hand in hand, which are
abridged in circumstances supporting a sensible inference that the
term left out must have been meant to be excluded. Echazabal claims
that Congress's adoption only of the threat-to-others exception in
the ADA was a deliberate omission of the threat-to-self exception
included in the EEOC's regulation implementing the precursor
Rehabilitation Act of 1973, which has language identical to that in
the ADA. But this is not an unequivocal implication of
congressional intent. Because the EEOC was not the only agency
interpreting the Rehabilitation Act, its regulation did not
establish a clear, standard pairing of threats to self and others.
And, it is likely that Congress used such language in the ADA
knowing what the EEOC had made of that language under the earlier
statute. The third strike is simply that there is no apparent
stopping point to the argument that, by specifying a
threat-to-others defense, Congress intended a negative implication
about those whose safety could be considered. For example, Congress
could not have meant that an employer could not defend a refusal to
hire when a worker's disability would threaten others outside the
workplace. pp. 79-84.
(c) Since Congress has not spoken exhaustively on threats to a
worker's own health, the regulation can claim adherence under the
rule in
Chevron U. S.
A. Inc. v.
Natural Resources
Defense Council, Inc., 467 U. S. 837, 843, so long as it makes
sense of the statutory defense for qualification standards that are
"job-related and consistent with business necessity." Chevron's
reasons for claiming that the regulation is reasonable include,
inter alia, that it allows Chevron to avoid the risk of
violating the Occupational Safety and Health Act of 1970 (OSHA).
Whether an employer would be liable under OSHA for hiring an
individual who consents to a job's particular dangers is an open
question, but the employer would be courting trouble under OSHA.
The EEOC's resolution exemplifies the substantive choices that
agencies are expected to make when Congress leaves the intersection
of competing objectives both imprecisely marked and subject to
administrative leeway. Nor can the EEOC's resolution be called
unreasonable as allowing the kind of workplace paternalism the ADA
was meant to outlaw. The ADA was trying to get at refusals to give
an even break to classes of disabled people, while claiming to act
for their own good in reliance on untested and pretextual
stereotypes. This sort of sham protection is just what the
regulation disallows, by demanding a particularized enquiry into
the harms an employee would probably face. Finally, that
75
the threat-to-self defense reasonably falls within the general
"job related" and "business necessity" standard does not reduce the
"direct threat" language to surplusage. The provision made a
conclusion clear that might otherwise have been fought over in
litigation or administrative rulemaking. pp. 84-87.
226 F.3d
1063, reversed and remanded.
SOUTER, J., delivered the opinion for a unanimous Court.
Stephen M. Shapiro argued the cause for petitioner. With him on
the briefs were James D. Holzhauer, Robert P. Davis, and Evan M.
Tager.
Lisa Schiavo Blatt argued the cause for the United States et al.
as amici curiae urging reversal. With her on the brief were
Solicitor General Olson, Deputy Solicitor General Clement,
Assistant Attorney General McCallum, Marleigh D. Dover, Matthew
Collette, Phillip B. Sklover, Carolyn L. Wheeler, and Robert
J. Gregory.
Samuel R. Bagenstos argued the cause for respondent.
With him on the brief were Larry Minsky and Chai R.
Feldblum.*
*Briefs of
amici curiae urging reversal were filed for
the American College of Occupational and Environmental Medicine et
al. by
Craig E. Stewart; for the Chamber of Commerce of the
United States et al. by
Roy T. Englert, Jr., Kathryn S.
Zecca, Stephen A. Bokat, and
Robin S.
Conrad;
for the Employers Group by
Fred W Alvarez and
Christine
A. Kendrick; for the Equal Employment Advisory Council et al.
by
Ann Elizabeth Reesman, Jan S.
Amundson, and
Quentin Riegel; for the Pacific Legal Foundation et al. by
Anne M. Hayes and
M. Reed Hopper; and for the Society
for Human Resource Management by
Peter J.
Petesch and
John E. Duvall.
Briefs of
amici curiae urging affirmance were filed for
the American Association of People with Disabilities et al. by
John Townsend Rich, Arlene Mayerson, Daniel B. Kohrman, Ira A.
Burnim, and
Jennifer Mathis; for the American Civil
Liberties Union et al. by
Matthew A. Coles, James D. Esseks,
Steven R. Shapiro, and
Lenora M. Lapidus; for the
American Public Health Association et al. by
Catherine A.
Hanssens and
Jon W Davidson; for the National Council on
Disability by
Peter Blanck, Diane Kutzko, Mark L. Zaiger,
Douglas R. Oelschlaeger, and
Sarah J.
Gayer; and for the National Employment Lawyers Association
by
Gary Phelan.
76
JUSTICE SOUTER delivered the opinion of the Court.
A regulation of the Equal Employment Opportunity Commission
authorizes refusal to hire an individual because his performance on
the job would endanger his own health, owing to a disability. The
question in this case is whether the Americans with Disabilities
Act of 1990, 104 Stat. 328, 42 U. S. C. § 12101
et seq.
(1994 ed. and Supp. V), permits the regulation.1 We hold that it
does.
I
Beginning in 1972, respondent Mario Echazabal worked for
independent contractors at an oil refinery owned by petitioner
Chevron U. S. A. Inc. Twice he applied for a job directly with
Chevron, which offered to hire him if he could pass the company's
physical examination. See 42 U. S. C. § 12112(d)(3) (1994 ed.).
Each time, the exam showed liver abnormality or damage, the cause
eventually being identified as Hepatitis C, which Chevron's doctors
said would be aggravated by continued exposure to toxins at
Chevron's refinery. In each instance, the company withdrew the
offer, and the second time it asked the contractor employing
Echazabal either to reassign him to a job without exposure to
harmful chemicals or to remove him from the refinery altogether.
The contractor laid him off in early 1996.
Echazabal filed suit, ultimately removed to federal court,
claiming, among other things, that Chevron violated the Americans
with Disabilities Act (ADA or Act) in refusing to
1 We do not consider the further issue passed upon by the Ninth
Circuit, which held that the respondent is a "'qualified
individual''' who "can perform the essential functions of the
employment position," 42 U. S. C. § 12111(8) (1994 ed.).
226 F.3d
1063, 1072 (2000). That issue will only resurface if the
Circuit concludes that the decision of respondent's employer to
exclude him was not based on the sort of individualized medical
enquiry required by the regulation, an issue on which the District
Court granted summary judgment for petitioner and which we leave to
the Ninth Circuit for initial appellate consideration if
warranted.
77
hire him, or even to let him continue working in the plant,
because of a disability, his liver condition.2 Chevron defended
under a regulation of the Equal Employment Opportunity Commission
(EEOC) permitting the defense that a worker's disability on the job
would pose a "direct threat" to his health, see 29 CFR §
1630.15(b)(2) (2001). Although two medical witnesses disputed
Chevron's judgment that Echazabal's liver function was impaired and
subject to further damage under the job conditions in the refinery,
the District Court granted summary judgment for Chevron. It held
that Echazabal raised no genuine issue of material fact as to
whether the company acted reasonably in relying on its own doctors'
medical advice, regardless of its accuracy.
On appeal, the Ninth Circuit asked for briefs on a threshold
question not raised before, whether the EEOC's regulation
recognizing a threat-to-self defense,
ibid., exceeded the
scope of permissible rulemaking under the ADA.
226 F.3d
1063, 1066, n. 3 (2000). The Circuit held that it did and
reversed the summary judgment. The court rested its position on the
text of the ADA itself in explicitly recognizing an employer's
right to adopt an employment qualification barring anyone whose
disability would place others in the workplace at risk, while
saying nothing about threats to the disabled employee himself. The
majority opinion reasoned that "by specifying only threats to
'other individuals in the workplace,' the statute makes it clear
that threats to other persons-including the disabled individual
himself-are not included within the scope of the [direct threat]
defense,"
id., at 1066-1067, and it indicated that any such
regulation would unreasonably conflict with congressional policy
against paternalism in the workplace,
id., at 1067-1070. The
court went on to reject Chevron's further argument that Echaza-
2 Chevron did not dispute for purposes of its summary-judgment
motion that Echazabal is "disabled" under the ADA, and Echazabal
did not argue that Chevron could have made a "'reasonable
accommodation.''' App. 184, n. 6.
78
bal was not" 'otherwise qualified'" to perform the job, holding
that the ability to perform a job without risk to one's health or
safety is not an "'essential function'" of the job.
Id., at
1070.
The decision conflicted with one from the Eleventh Circuit,
Moses v.
American Nonwovens, Inc., 97 F.3d
446,447 (1996), and raised tension with the Seventh Circuit
case of
Koshinski v.
Decatur Foundry, Inc., 177 F.3d
599, 603 (1999). We granted certiorari, 534 U. S. 991 (2001),
and now reverse.
II
Section 102 of the ADA, 104 Stat. 328, 42 U. S. C. § 12101
et
seq., prohibits "discriminat[ion] against a qualified
individual with a disability because of the disability ... in
regard to" a number of actions by an employer, including "hiring."
42 U. S. C. § 12112(a). The statutory definition of
"discriminat[ion]" covers a number of things an employer might do
to block a disabled person from advancing in the workplace, such as
"using qualification standards ... that screen out or tend to
screen out an individual with a disability." § 12112(b)(6). By that
same definition,
ibid., as well as by separate provision, §
12113(a), the Act creates an affirmative defense for action under a
qualification standard "shown to be job-related for the position in
question and ... consistent with business necessity." Such a
standard may include "a requirement that an individual shall not
pose a direct threat to the health or safety of other individuals
in the workplace," § 12113(b), if the individual cannot perform the
job safely with reasonable accommodation, § 12113(a). By
regulation, the EEOC carries the defense one step further, in
allowing an employer to screen out a potential worker with a
disability not only for risks that he would pose to others in the
workplace but for risks on the job to his own health or safety as
well: "The term 'qualification standard' may include a requirement
that an individual shall not pose
79
a direct threat to the health or safety of the individual or
others in the workplace." 29 CFR § 1630.15(b)(2) (2001).
Chevron relies on the regulation here, since it says a job in
the refinery would pose a "direct threat" to Echazabal's health. In
seeking deference to the agency, it argues that nothing in the
statute unambiguously precludes such a defense, while the
regulation was adopted under authority explicitly delegated by
Congress, 42 U. S. C. § 12116, and after notice-and-comment
rulemaking. See
United States v.
Mead Corp., 533 U. S. 218, 227
(2001);
Chevron U. S.
A. Inc. v.
Natural Resources
Defense Council, Inc., 467 U. S. 837, 842-844
(1984). Echazabal, on the contrary, argues that as a matter of law
the statute precludes the regulation, which he claims would be an
unreasonable interpretation even if the agency had leeway to go
beyond the literal text.
A
As for the textual bar to any agency action as a matter of law,
Echazabal says that Chevron loses on the threshold question whether
the statute leaves a gap for the EEOC to fill. See
id., at
843-844. Echazabal recognizes the generality of the language
providing for a defense when a plaintiff is screened out by
"qualification standards" that are "jobrelated and consistent with
business necessity" (and reasonable accommodation would not cure
the difficulty posed by employment). 42 U. S. C. § 12113(a).
Without more, those provisions would allow an employer to turn away
someone whose work would pose a serious risk to himself. That
possibility is said to be eliminated, however, by the further
specification that "'qualification standards' may include a
requirement that an individual shall not pose a direct threat to
the health or safety of other individuals in the workplace." §
12113(b); see also § 12111(3) (defining "direct threat" in terms of
risk to others). Echazabal contrasts this provision with an EEOC
regulation under the Rehabilitation Act of 1973, 87 Stat. 357, as
amended, 29 U. S. C. § 701
et seq., ante-
80
dating the ADA, which recognized an employer's right to consider
threats both to other workers and to the threatening employee
himself. Because the ADA defense provision recognizes threats only
if they extend to another, Echazabal reads the statute to imply as
a matter of law that threats to the worker himself cannot
count.
The argument follows the reliance of the Ninth Circuit majority
on the interpretive canon,
expressio unius est exclusio
alterius, "expressing one item of [an] associated group or
series excludes another left unmentioned."
United States v.
Vonn, 535 U. S.
55, 65 (2002). The rule is fine when it applies, but this case
joins some others in showing when it does not. See,
e. g.,
ibid.; United Dominion Industries, Inc. v.
United
States, 532 U. S.
822, 836 (2001);
Pauley v.
BethEnergy Mines,
Inc., 501 U. S.
680, 703 (1991).
The first strike against the expression-exclusion rule here is
right in the text that Echazabal quotes. Congress included the
harm-to-others provision as an example of legitimate qualifications
that are "job-related and consistent with business necessity."
These are spacious defensive categories, which seem to give an
agency (or in the absence of agency action, a court) a good deal of
discretion in setting the limits of permissible qualification
standards. That discretion is confirmed, if not magnified, by the
provision that "qualification standards" falling within the limits
of job relation and business necessity "may include" a veto on
those who would directly threaten others in the workplace. Far from
supporting Echazabal's position, the expansive phrasing of "may
include" points directly away from the sort of exclusive
specification he claims.
United States v.
New York
Telephone Co., 434 U. S. 159, 169
(1977);
Federal Land Bank of St. Paul v.
Bismarck Lumber
Co., 314 U. S.
95, 100 (1941).3
3 In saying that the expansive textual phrases point in the
direction of agency leeway we do not mean that the defense
provisions place no limit on agency rulemaking. Without deciding
whether all safety-related qualification standards must satisfy the
ADA's direct-threat standard, see
Al-
81
Just as statutory language suggesting exclusiveness is missing,
so is that essential extrastatutory ingredient of an
expression-exclusion demonstration, the series of terms from which
an omission bespeaks a negative implication. The canon depends on
identifying a series of two or more terms or things that should be
understood to go hand in hand, which is abridged in circumstances
supporting a sensible inference that the term left out must have
been meant to be excluded. E. Crawford, Construction of Statutes
337 (1940)
(expressio unius "'properly applies only when in
the natural association of ideas in the mind of the reader that
which is expressed is so set over by way of strong contrast to that
which is omitted that the contrast enforces the affirmative
inference'" (quoting
State ex rel. Curtis v.
De
Corps, 134 Ohio St. 295, 299, 16 N. E. 2d 459, 462 (1938)));
United States
Strike two in this case is the failure to identify any such
established series, including both threats to others and threats to
self, from which Congress appears to have made a deliberate choice
to omit the latter item as a signal of the affirmative defense's
scope. The closest Echazabal comes is the EEOC's rule interpreting
the Rehabilitation Act of 1973, 87 Stat. 357, as amended, 29 U. S.
C. § 701
et seq., a precursor of the ADA. That statute
excepts from the definition of a protected "qualified individual
with a handicap" anyone who would pose a "direct threat to the
health or safety of other individuals," but, like the later ADA,
the Rehabilitation
bertson's, Inc. v.
Kirkingburg, 527 U. S. 555, 569-570,
n. 15 (1999), we assume that some such regulations are implicitly
precluded by the Act's specification of a direct-threat defense,
such as those allowing "indirect" threats of "insignificant" harm.
This is so because the definitional and defense provisions
describing the defense in terms of "direct" threats of
"significant" harm, 42 U. S. C. §§ 12113(b), 12111(3), are
obviously intended to forbid qualifications that screen out by
reference to general categories pretextually applied. See
infra, at 85-86, and n. 5. Recognizing the "indirect" and
"insignificant" would simply reopen the door to pretext by way of
defense.
82
Act says nothing about threats to self that particular
employment might pose. 42 U. S. C. § 12113(b). The EEOC nonetheless
extended the exception to cover threat-to-self employment, 29 CFR §
1613.702(f) (1990), and Echazabal argues that Congress's adoption
only of the threat-to-others exception in the ADA must have been a
deliberate omission of the Rehabilitation Act regulation's tandem
term of threat-to-self, with intent to exclude it.
But two reasons stand in the way of treating the omission as an
unequivocal implication of congressional intent. The first is that
the EEOC was not the only agency interpreting the Rehabilitation
Act, with the consequence that its regulation did not establish a
clear, standard pairing of threats to self and others. While the
EEOC did amplify upon the text of the Rehabilitation Act exclusion
by recognizing threats to self along with threats to others, three
other agencies adopting regulations under the Rehabilitation Act
did not. See 28 CFR §
42.540(l)(1) (1990) (Department of
Justice), 29 CFR § 32.3 (1990) (Department of Labor), and 45 CFR §
84.3(k)(1) (1990) (Department of Health and Human Services).4 It
would be a stretch, then, to say that there was a standard usage,
with its source in agency practice or elsewhere, that connected
threats to others so closely to threats to self that leaving out
one was like ignoring a twin.
Even if we put aside this variety of administrative experience,
however, and look no further than the EEOC's Rehabil-
4 In fact, we have said that the regulations issued by the
Department of Health and Human Services, which had previously been
the regulations of the Department of Health, Education, and
Welfare, are of "particular significance" in interpreting the
Rehabilitation Act because "HEW was the agency responsible for
coordinating the implementation and enforcement of § 504 of the
Rehabilitation Act, 29 U. S. C. § 794," prohibiting discrimination
against individuals with disabilities by recipients of federal
funds.
Toyota Motor Mfg., Ky., Inc. v.
Williams,
534 U. S. 184,
195 (2002). Unfortunately for Echazabal's argument, the congruence
of the ADA with the HEW regulations does not produce an unequivocal
statement of congressional intent.
83
itation Act regulation pairing self and others, the
congressional choice to speak only of threats to others would still
be equivocal. Consider what the ADA reference to threats to others
might have meant on somewhat different facts. If the Rehabilitation
Act had spoken only of "threats to health" and the EEOC regulation
had read that to mean threats to self or others, a congressional
choice to be more specific in the ADA by listing threats to others
but not threats to self would have carried a message. The most
probable reading would have been that Congress understood what a
failure to specify could lead to and had made a choice to limit the
possibilities. The statutory basis for any agency rulemaking under
the ADA would have been different from its basis under the
Rehabilitation Act and would have indicated a difference in the
agency's rulemaking discretion. But these are not the circumstances
here. Instead of making the ADA different from the Rehabilitation
Act on the point at issue, Congress used identical language,
knowing full well what the EEOC had made of that language under the
earlier statute. Did Congress mean to imply that the agency had
been wrong in reading the earlier language to allow it to recognize
threats to self, or did Congress just assume that the agency was
free to do under the ADA what it had already done under the earlier
Act's identical language? There is no way to tell. Omitting the
EEOC's reference to self-harm while using the very language that
the EEOC had read as consistent with recognizing self-harm is
equivocal at best. No negative inference is possible.
There is even a third strike against applying the
expression-exclusion rule here. It is simply that there is no
apparent stopping point to the argument that by specifying a
threat-to-others defense Congress intended a negative implication
about those whose safety could be considered. When Congress
specified threats to others in the workplace, for example, could it
possibly have meant that an employer could not defend a refusal to
hire when a worker's disability
84
would threaten others outside the workplace? If Typhoid Mary had
come under the ADA, would a meat packer have been defenseless if
Mary had sued after being turned away? See 42 U. S. C. § 12113(d).
Expressio unius just fails to work here.
B
Since Congress has not spoken exhaustively on threats to a
worker's own health, the agency regulation can claim adherence
under the rule in
Chevron, 467 U. S., at 843, so long as it
makes sense of the statutory defense for qualification standards
that are "job-related and consistent with business necessity." 42
U. S. C. § 12113(a). Chevron's reasons for calling the regulation
reasonable are unsurprising: moral concerns aside, it wishes to
avoid time lost to sickness, excessive turnover from medical
retirement or death, litigation under state tort law, and the risk
of violating the national Occupational Safety and Health Act of
1970, 84 Stat. 1590, as amended, 29 U. S. C. § 651
et seq.
Although Echazabal claims that none of these reasons is legitimate,
focusing on the concern with OSHA will be enough to show that the
regulation is entitled to survive.
Echazabal points out that there is no known instance of OSHA
enforcement, or even threatened enforcement, against an employer
who relied on the ADA to hire a worker willing to accept a risk to
himself from his disability on the job. In Echazabal's mind, this
shows that invoking OSHA policy and possible OSHA liability is just
a red herring to excuse covert discrimination. But there is another
side to this. The text of OSHA itself says its point is "to assure
so far as possible every working man and woman in the Nation safe
and healthful working conditions," § 651(b), and Congress
specifically obligated an employer to "furnish to each of his
employees employment and a place of employment which are free from
recognized hazards that are causing or are likely to cause death or
serious physical harm to his employees," § 654(a)(1). Although
there may be an open question
85
whether an employer would actually be liable under OSHA for
hiring an individual who knowingly consented to the particular
dangers the job would pose to him, see Brief for United States et
al. as
Amici Curiae 19, n. 7, there is no denying that the
employer would be asking for trouble: his decision to hire would
put Congress's policy in the ADA, a disabled individual's right to
operate on equal terms within the workplace, at loggerheads with
the competing policy of OSHA, to ensure the safety of "each" and
"every" worker. Courts would, of course, resolve the tension if
there were no agency action, but the EEOC's resolution exemplifies
the substantive choices that agencies are expected to make when
Congress leaves the intersection of competing objectives both
imprecisely marked but subject to the administrative leeway found
in 42 U. S. C. § 12113(a).
Nor can the EEOC's resolution be fairly called unreasonable as
allowing the kind of workplace paternalism the ADA was meant to
outlaw. It is true that Congress had paternalism in its sights when
it passed the ADA, see § 12101(a)(5) (recognizing "overprotective
rules and policies" as a form of discrimination). But the EEOC has
taken this to mean that Congress was not aiming at an employer's
refusal to place disabled workers at a specifically demonstrated
risk, but was trying to get at refusals to give an even break to
classes of disabled people, while claiming to act for their own
good in reliance on untested and pretextual stereotypes.5 Its
regu-
5 Echazabal's contention that the Act's legislative history is
to the contrary is unpersuasive. Although some of the comments
within the legislative history decry paternalism in general terms,
see,
e. g., H. R. Rep. No. 101-485, pt. 2, p. 72
(1990) ("It is critical that paternalistic concerns for the
disabled person's own safety not be used to disqualify an otherwise
qualified applicant"); ADA Conf. Rep., 136 Congo Rec. 17377 (1990)
(statement of Sen. Kennedy) ("[A]n employer could not use as an
excuse for not hiring a person with HIV disease the claim that the
employer was simply 'protecting the individual' from opportunistic
diseases to which the individual might be exposed"), those comments
that elaborate actually express the more pointed concern that such
justifications are usually pretextual,
86
lation disallows just this sort of sham protection, through
demands for a particularized enquiry into the harms the employee
would probably face. The direct threat defense must be "based on a
reasonable medical judgment that relies on the most current medical
knowledge and/or the best available objective evidence," and upon
an expressly "individualized assessment of the individual's present
ability to safely perform the essential functions of the job,"
reached after considering, among other things, the imminence of the
risk and the severity of the harm portended. 29 CFR § 1630.2(r)
(2001). The EEOC was certainly acting within the reasonable zone
when it saw a difference between rejecting workplace paternalism
and ignoring specific and documented risks to the employee himself,
even if the employee would take his chances for the sake of getting
a job.6
rooted in generalities and misperceptions about disabilities.
See,
e. g., H. R. Rep. No. 101-485, at 74
("Generalized fear about risks from the employment environment,
such as exacerbation of the disability caused by stress, cannot be
used by an employer to disqualify a person with a disability"); S.
Rep. No. 101-116, p. 28 (1989) ("It would also be a violation to
deny employment to an applicant based on generalized fears about
the safety of the applicant .... By definition, such fears are
based on averages and group-based predictions. This legislation
requires individualized assessments").
Similarly, Echazabal points to several of our decisions
expressing concern under Title VII, which like the ADA allows
employers to defend otherwise discriminatory practices that are
"consistent with business necessity," 42 U. S. C. § 2000e-2(k),
with employers adopting rules that exclude women from jobs that are
seen as too risky. See,
e. g., Dothard v.
Rawlinson, 433
U. S. 321, 335 (1977);
Automobile Workers v.
Johnson
Controls, Inc., 499 U. S. 187,202 (1991).
Those cases, however, are beside the point, as they, like Title VII
generally, were concerned with paternalistic judgments based on the
broad category of gender, while the EEOC has required that
judgments based on the direct threat provision be made on the basis
of individualized risk assessments.
6 Respect for this distinction does not entail the requirement,
as Echazabal claims, that qualification standards be "neutral,"
stating what the job requires, as distinct from a worker's
disqualifying characteristics. Brief for Respondent 26. It is just
as much business necessity for skyscraper
87
Finally, our conclusions that some regulation is permissible and
this one is reasonable are not open to Echazabal's objection that
they reduce the direct threat provision to "surplusage," see
Babbitt v.
Sweet Home Chapter, Communities for Great
Ore., 515 U. S.
687, 698 (1995). The mere fact that a threat-to-self defense
reasonably falls within the general "job related" and "business
necessity" standard does not mean that Congress accomplished
nothing with its explicit provision for a defense based on threats
to others. The provision made a conclusion clear that might
otherwise have been fought over in litigation or administrative
rulemaking. It did not lack a job to do merely because the EEOC
might have adopted the same rule later in applying the general
defense provisions, nor was its job any less responsible simply
because the agency was left with the option to go a step further. A
provision can be useful even without congressional attention being
indispensable.
Accordingly, we reverse the judgment of the Court of Appeals and
remand the case for proceedings consistent with this opinion.
It is so ordered.
contractors to have steelworkers without vertigo as to have
well-balanced ones. See 226 F. 3d, at 1074 (Trott, J., dissenting).
Reasonableness does not turn on formalism. We have no occasion,
however, to try to describe how acutely an employee must exhibit a
disqualifying condition before an employer may exclude him from the
class of the generally qualified. See Brief for Respondent 31. This
is a job for the trial courts in the first instance.
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