In July 2002, we reported on a U.S. Supreme Court ruling that an employer can defend against a disability discrimination claim by showing the individual poses a direct threat-that is, a significant risk to the health and safety of the individual or others that can’t be eliminated by reasonable accommodation. Now, in a new development in the same case, a Ninth Circuit Court of Appeals opinion requires employers who use the direct threat defense to provide a high level of proof.
Worker Excluded from Job
Mario Echazabal, who worked for a maintenance contractor at Chev- ron’s El Segundo oil refinery, applied to work directly for Chevron. He was turned down after preemployment medical exams revealed he had hepatitis C, which could be exacerbated by chemicals at the refinery. Echazabal sued, claiming Chev- ron discriminated against him under the Americans with Disabilities Act (ADA). Chevron argued it could legally exclude Echazabal from the refinery because his job duties posed a direct threat to his own health and safety-the chemical exposure increased his risk of liver damage. Echazabal countered that the direct threat defense applied only if the threat was to others in the workplace, not to the employee himself.The U.S. Supreme Court, however, said the direct threat defense applied both to the employee and to others. Before excluding an individual from employment as a direct threat, the employer must make an “individualized assessment” of the employee’s ability to perform the essential job functions based on current medical knowledge, the high court said. The case was returned to the Ninth Circuit Court of Appeal to determine whether Chevron met this standard.
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Employer’s Decision Questioned
In the new opinion, the Ninth Circuit, which covers California, explained that an individualized assessment means the employer must gather substantial information about an employee’s work history and medical status. And, the employer must analyze: 1) the duration of the health or safety risk; 2) the nature and severity of the potential harm; 3) the likelihood the harm will occur; and 4) the imminence of the harm.
The appeal court said a jury could find Chevron’s conclusions about Echazabal were faulty because Chevron relied on exam results from its own doctors who weren’t liver experts and weren’t informed of the chemicals involved or the levels of concentration. In contrast, Echaza- bal’s doctors, both specialists in toxicology and liver disease, conducted tests determining that Echazabal’s liver was functioning properly and found he wasn’t at high risk for problems from chemical exposure.
The court also pointed out that Chevron ignored that Echazabal had worked at the refinery for 20 years without incident—a good indicator that Echazabal might not pose a direct threat to himself as a refinery employee. Thus, the appeal court sent the case back to a jury to decide whether Chevron’s exclusion of Echazabal complied with the ADA.
Tough Standard
This latest decision underscores that the direct threat defense requires a high level of proof. If you’re faced with the question of whether an employee can perform a job safely, evaluate each case individually, look at all the facts and circumstances, and seek expert medical advice. And be sure to examine whether a reasonable accommodation would reduce the risk of harm.