ADA’s Direct Threat Defense

For over eighty years the federal government has taken increasingly aggressive steps to support the disabled by providing rehabilitative services and enacting legislation to reduce discriminatory practices. While significant progress has been made, a series of federal appellate decisions have set back these advancements by finding that the Americans with Disabilities Act of 1990 (ADA) permits employers to exclude otherwise qualified disabled individuals from positions solely because placement in the job would pose a risk to their own health or safety. Some courts have gone even further by placing the burden on the disabled to prove that such safety concerns do not make them unqualified for the position they seek. A recent case, Echazabal v. Chevron, USA, Inc., handed down by the Court of Appeals for the Ninth Circuit signaled a giant step toward reversing this trend by requiring employers to ignore self-risk concerns and permit the disabled to judge for themselves the relative risks of an employment opportunity without outside interference. The Echazabal court specifically held that an employer may not “shut disabled individuals out of jobs on the ground that, by working in the jobs at issue, they may put their own health or safety at risk.” Further, the court squarely placed the burden of proof on defendants whenever safety concerns form the basis for rejecting disabled persons. In effect, the court made clear that otherwise qualified disabled individuals had the sole discretion whether to accept any elevated self-risk that may accompany placement in certain jobs, and only when an employer proves a disabled individual poses a risk to others can he be excluded from employment.

This Note traces the history of the federal government’s involvement in helping the disabled participate more fully in the workplace, and puts in context the critical significance of Echazabal in the long march toward greater equality. A review of the early statutes, beginning after World War I, is followed by an examination of the government’s attempt to put teeth into the law by obligating government contractors in 1973 to affirmatively take certain steps to insure non-discrimination. In 1990, the government went a step further by expanding the protection of federal law to cover a greater number of employing entities, and requiring those organizations to make reasonable accommodations to insure fuller participation of the disabled.

In passing the Americans with Disabilities Act of 1990, Congress specifically addressed the role that safety and health concerns should play by incorporating as an affirmative defense the concept relied on by the U.S. Supreme Court in its 1987 Arline decision permitting employers to exclude those whose condition would pose a risk to the health or safety of others in the workplace. Significantly, the legislature did not extend the exclusionary right to situations where the only risk posed was to the individual’s own health or safety. Regulatory interpretation, however, expanded the scope of the exclusionary right to self-risk situations. Following passage of the ADA and issuance of the Equal Employment Opportunity Commission’s (EEOC) regulations, appellate courts reviewing ADA claims consistently gave weight to the Agency’s interpretation permitting exclusion based solely on self-risk concerns, but split on the issue of which party had the burden of proving the safety concerns were sufficient to bar employment. It was against this backdrop that the Ninth Circuit issued its decision in Echazabal.

Part III discusses the decision and the court’s reliance on text, history and policy in formulating its position. Also explored are the dissent’s arguments that Plaintiff was not qualified, the court should have shown more deference to the Agency’s definition of “direct threat,” and Chevron should not have been forced to hire Mr. Echazabal because his employment placed an undue ethical and legal burden on Defendant.

The Note goes on in Part IV to analyze the Echazabal decision by looking at the plain meaning of the ADA, its legislative history, and perhaps most importantly comparisons between treatment of the disabled and other groups who have successfully dismantled artificial barriers to employment initially justified by similar protectionist concerns. In particular the struggle of women, Hispanics and Asians is reviewed. Also explored is the reality that many occupations are inherently dangerous yet society permits non-disabled individuals to take on risky tasks each day, and in fact the economy would fail to function if a line was drawn prohibiting people from working in jobs that are statistically shown to cause greater levels of injury, disease, and death. In recognition of this reality the state has set up compensation programs to pay the costs of the inevitable harms visited upon those who willingly accept positions that lead to injury or death.

Given the history of the federal government’s long and continual promotion of integrating the disabled into all aspects of the workplace; the clear and express language of the ADA; its legislative history including specific adoption of the Arline “risk-to-others” concept of exclusion; and the need to insure elimination of any disparate treatment of disabled workers, this Note takes the position that Echazabal was correctly decided, and if eventually heard on appeal should be affirmed.

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