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| [1] | U.S. Court of Appeals, Fifth Circuit |
| [2] | No. 98-11356 |
| [3] | 203 F.3d 871, 10 A.D. Cases 225, 2000.C05.0042077 <http://www.versuslaw.com> |
| [4] | February 11, 2000 |
| [5] | EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF-APPELLEE, v. EXXON CORPORATION, DEFENDANT-APPELLANT. |
| [6] | Before Higginbotham and Smith, Circuit Judges, and Duplantier, District
Judge.*fn1 |
| [7] | The opinion of the court was delivered by: Patrick E. Higginbotham, Circuit
Judge |
| [8] | Appeal from the United States District Court for the Northern District
of Texas |
| [9] | In this appeal under the Americans with Disabilities Act ("ADA"), we review
the measure of a safety-based qualification standard defended as a business
necessity. The EEOC moved for partial summary judgment arguing that the
only defense available under the ADA when an employer imposes a safety qualification
standard is for the employer to prove that the individual poses a "direct
threat." The district court granted the motion. We are not persuaded by
the position of the EEOC and accepted by the district court. Rather, we
find that applying direct threat only in cases in which the employer imposes
a special safety standard in an individual case offers a more coherent meaning
of the statute and of the role of safety under it. We REVERSE. |
| [10] | I. |
| [11] | The EEOC brought this suit on behalf of certain Exxon employees, alleging
that Exxon's substance abuse policy violates the ADA. The policy permanently
removes any employee who has undergone treatment for substance abuse from
certain safety-sensitive, little-supervised positions. The policy affects
about ten percent of Exxon's positions. Exxon adopted the policy in response
to the 1989 Exxon Valdez incident, in which one of its tankers ran aground,
causing environmental injury and resulting in billions of dollars of liability
for Exxon. Concerns arose that the tanker's chief officer's alcoholism,
which had previously been treated, might have contributed to the accident. |
| [12] | The EEOC claims that pursuant to the policy, Exxon demoted employees who
underwent treatment several decades ago. Exxon justifies its policy as promoting
safety in jobs in which it is unable to oversee employees to ensure they
are not relapsing into substance abuse, as well as furthering environmental
protection, the prevention of future tort liability, and good corporate
citizenship. Before trial, the EEOC moved for partial summary judgment on
the grounds that Exxon must defend its policy under the "direct threat"
provision of the ADA. The magistrate judge recommended summary judgment
for the EEOC, and the district court adopted that recommendation but acknowledged
the difficulty and certified the issue for appeal. We granted leave to Exxon
to appeal the interlocutory order under 28 U.S.C. § 1292(b). |
| [13] | II. |
| [14] | The ADA prohibits an employer from using qualification standards that
screen out a disabled individual or class. See 42 U.S.C. § 12112(b)(6)
(1999). An employer may raise certain affirmative defenses to such a charge.*fn2
The relevant portions of the statute's "Defenses" provision read: |
| [15] | (a) In general |
| [16] | It may be a defense to a charge of discrimination under this chapter that
an alleged application of qualification standards . . . that screen out
or tend to screen out or otherwise deny a job or benefit to an individual
with a disability has been shown to be job-related and consistent with business
necessity. . . . |
| [17] | (b) Qualification standards |
| [18] | The term "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. |
| [19] | Safety-based qualification standards are an accepted ground for a defense;
the question before us is whether an employer may defend the questioned
personnel decision as based on a standard justified as a business necessity
or must demonstrate a "direct threat" in each circumstance.*fn3 |
| [20] | Exxon contends that because the statute does not explicitly mandate the
direct threat test for every safety-based qualification standard, it may
defend its policy under either section of the provision. The EEOC argues
that the direct threat test must be used in every case where a safety-based
requirement is at issue. The EEOC has issued Interpretive Guidance, which
generally requires employers to meet the direct threat test: |
| [21] | With regard to safety requirements that screen out or tend to screen out
an individual with a disability or a class of individuals with disabilities,
an employer must demonstrate that the requirement, as applied to the individual,
satisfies the "direct threat" standard in § 1630.2(r) in order to show
that the requirement is job-related and consistent with business necessity.
29 C.F.R. pt. 1630, App. § 1630.15(b) & (c). |
| [22] | This language, not being part of the regulation, is not entitled to Chevron
deference. Rather, we will give it due deference to the extent it is reasonable
and harmonizes with the plain language of the statute, its origin and purposes.
Cf. Fort Hood Barbers Ass'n v. Herman, 137 F.3d 302, 307 (5th Cir. 1998)
(construing deference appropriate for an interpretive regulation). |
| [23] | Our review begins with the language of the provision itself. Two aspects
of the provision indicate that safety requirements are not exclusively cabined
into the direct threat test. First, § 12113(a) speaks of qualification
standards that "screen out or tend to screen out an individual." This language
suggests a general standard applicable to all employees. In contrast, the
direct threat provision of § 12113(b), phrased in the permissive, allows
a requirement that the individual not pose a threat to health or safety.
The different approaches suggest that business necessity applies to across-the-board
rules, while direct threat addresses a standard imposed on a particular
individual. |
| [24] | This reading is confirmed by the language in § 12113(b) stating that
the individual shall not pose a direct threat to "others in the workplace."
This language appears odd, if we are to accept the EEOC's interpretation
that all safety-related qualification standards are addressed by this provision.
Many employees who pose safety risks, such as a driver unqualified to transport
hazardous substances, would not pose a particular threat to others in their
workplaces. |
| [25] | The origin of the workplace language sheds light on what problem §
12113(b) seeks to remedy. The direct threat provision derives from School
Board of Nassau County v. Arline, 480 U.S. 273 (1987), in which the Supreme
Court construed the ADA's predecessor Rehabilitation Act. See H.R. Rep.
No. 101-485(II), at 56-57 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 338-39.
In Arline, the plaintiff, a teacher battling tuberculosis, was fired after
concerns arose that her students would become infected. The teacher met
all of the established qualification standards relating to the performance
of her job. The Court held that the plaintiff was not qualified for her
position because of her illness only if she posed a significant risk to
others in the workplace. See Arline, 480 U.S. at 276, 284, 287. |
| [26] | When Congress codified Arline in the ADA, it kept the workplace language
but expanded coverage to individuals with disabilities other than contagious
illnesses. The legislative history's examples of direct threat, however
-- contagious illnesses, mental disabilities, and mental illnesses -- continue
the focus on situations in which an employer might impose a safety standard
in an individual's particular case separate from the general qualification
standards required for the position. See H.R. Rep. No. 101-485(III), at
45 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 468-69 & n.37. |
| [27] | Neither the statute, the legislative history, nor Arline discusses the
distinct situation in which a pre-existing safety-based qualification standard
applies across-the-board for the position, such as a requirement that a
bus driver meet certain sight requirements. Such requirements arise in safety-sensitive
jobs such as driving or working with hazardous substances. See, e.g., Albertsons,
Inc. v. Kirkingburg, 1999 WL 407456, at *1 (U.S. 1999) (company imposed
vision requirements on truck drivers). In cases where an employer has developed
a general safety requirement for a position, safety is a qualification standard
no different from other requirements defended under the ADA's business necessity
provision. See 29 C.F.R. § 1630.2(q). Physical requirements, for example,
such as lifting, walking or seeing, are acceptable defenses as long as the
requirements are job-related and consistent with business necessity. See
29 C.F.R. pt. 1630, App. § 1630.10. Requirements that may be valid
as a business necessity must be "established" by the employer to be eligible
for the position. See 29 C.F.R. § 1630.2(q). |
| [28] | Similarly, the business necessity defense under Title VII and the ADEA
has applied to safety-based qualification standards which tend to screen
out women or certain age groups. See Smith v. City of Des Moines, 99 F.3d
1466, 1471 (8th Cir. 1996) (applying business necessity standard in an ADEA
suit regarding safety standards for firefighters); Levin v. Delta Air Lines,
Inc., 730 F.2d 994, 997 (5th Cir. 1984) (applying business necessity in
a Title VII challenge to safety requirements affecting pregnant women).
In these areas of employment discrimination law, the strength of the defense
again turns on whether the employer can justify the safety standard as a
general rule. See Smith, 99 F.3d at 1472-73 (examining validity of qualification
standard rather than experts' opinions as to plaintiff's general fitness
for position). |
| [29] | While no court has as yet addressed the question we answer today, several
trends in ADA case law indicate that the direct threat test is not deployed
where an employer uses a general safety-based qualification standard applicable
across-the-board.*fn4
See, e.g., Jeffrey A. Van Detta, "'Typhoid Mary' Meets the ADA: A Case Study
of the 'Direct Threat' Standard Under the Americans With Disabilities Act,"
22 Harv. J.L. Pub. Pol'y 849, 935 (1999) (noting tendency of courts to ignore
Arline in cases relating to transportation jobs). Several cases have held
that an employee is "not qualified," without discussing direct threat, if
the employee cannot meet an established safety requirement for the position.
See, e.g., Jones v. Kerrville State Hosp., 142 F.3d 263, 265-66 (5th Cir.
1998) (holding that nurse who was unable to complete training on safe subduing
of patients was not qualified); Newman v. Chevron U.S.A., 979 F. Supp. 1085,
1090-91 (S.D. Tex. 1997) (gasoline truck driver with post traumatic stress
disorder not qualified). Because the "otherwise qualified" analysis and
the business necessity defense each involves whether the individual can
perform the "essential functions" of the job, see 42 U.S.C. § 12111(8);
29 C.F.R. pt. 1630, App. § 1630.10, these courts' approach mirrors
the business necessity standard. |
| [30] | We have found nothing in the statutory language, legislative history or
case law that persuades that the direct threat provision addresses safety-based
qualification standards in cases where an employer has developed a standard
applicable to all employees of a given class. We hold that an employer need
not proceed under the direct threat provision of § 12113(b) in such
cases but rather may defend the standard as a business necessity. The direct
threat test applies in cases in which an employer responds to an individual
employee's supposed risk that is not addressed by an existing qualification
standard. |
| [31] | In so holding, we note that direct threat and business necessity do not
present hurdles that comparatively are inevitably higher or lower but rather
require different types of proof. Direct threat focuses on the individual
employee, examining the specific risk posed by the employee's disability.
See 29 C.F.R. § 1630.2(r). In contrast, business necessity addresses
whether the qualification standard can be justified as an across-the-board
requirement. Either way, the proofs will ensure that the risks are real
and not the product of stereotypical assumptions. |
| [32] | In evaluating whether the risks addressed by a safety-based qualification
standard constitute a business necessity, the court should take into account
the magnitude of possible harm as well as the probability of occurrence.
The acceptable probability of an incident will vary with the potential hazard
posed by the particular position: a probability that might be tolerable
in an ordinary job might be intolerable for a position involving atomic
reactors, for example. In short, the probability of the occurrence is discounted
by the magnitude of its consequences. In Exxon's case, the court should
thus consider the magnitude of a failure in assessing whether the rate of
recidivism among recovering substance abusers constitutes a safety risk
sufficient for business necessity. |
| [33] | REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. |
|
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| Opinion Footnotes | |
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|
|
| [34] | *fn1 . District Judge of the Eastern District of Louisiana, sitting by
designation. |
| [35] | *fn2 . Whether
the employees on whose behalf the EEOC is suing are "disabled" within the
meaning of the ADA is not before us. |
| [36] | *fn3 . Exxon
also cites its concern for the environment as a ground for the policy. We
find this justification subsumed in the safety motivation. Exxon further
claims that tort liability should be a separate basis for a business necessity
defense. Exxon faced massive tort liability as a result of the Valdez spill
and claims that should another incident occur, it would be subject to heightened
damages, including punitive and criminal sanctions. In International Union
v. Johnson Controls, Inc., the Supreme Court noted that tort liability might
be a valid defense if the added costs would threaten the survival of the
employer's business. 499 U.S. 187, 210-11 (1991). |
| [37] | *fn4 . The Supreme
Court also recently questioned the EEOC's claim for exclusive use of the
direct threat standard. In dicta in Albertsons, Inc. v. Kirkingburg, Justice
Souter questioned the soundness of the EEOC's position requiring a showing
of "direct threat" to justify a safety-related qualification standard. 1999
WL 407456, at *7 n.15 (U.S. 1999). At issue in Albertsons was a truck driver
with monocular vision who failed his employer's vision standards. The EEOC
argued that the employer would have to proceed under the direct threat standard.
The Court, however, decided the case on other grounds. See Albertsons, 1999
WL at *1, *7. |
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