The greatest irony of the Exxon Valdez oil spill is that when Exxon implemented the substance abuse policies seeming mandated by the all the criticism surrounding their captain's misadventure, it was promptly and successfully sued for violating the rights of the substance abusing captains! In case the EEOC contests Exxon's policy of permanently removing all persons found to be substance abusers from " safety-sensitive, little-supervised positions" - most prominently ship captain positions. The district court agreed with the EEOC's claim that this policy violated the ADA and granted the EEOC a partial summary judgment. Defendant appealed. After reviewing the history and public policy behind these regulations, the appeals court rejected EEOC's position that defendant had to prove that each affected employee personally posed a direct threat to other employees or to the public safety. The court held that employees who established proper business necessity standards, such as fitness requirements for firefighters, and applied those evenhandedly across the pool of employees did not have to prove that each individual employee excluded was a direct threat. The court stressed that this does not give employees carte blanche to exclude the disabled, but changes the nature of the proof that plaintiff must show to prevail. To attack a business necessity standard, the plaintiff must show that it is either not a necessity or that it is not evenly applied. This is an important case with a useful analysis of the problem and a good set of citations.
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