NO. 98-11356
_____________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________________________________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff—Appellee,
v.
EXXON CORPORATION,
Defendant—Appellant.
_________________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
_____________________________________________________________
BRIEF AMICUS CURIAE OF THE
EQUAL EMPLOYMENT ADVISORY COUNCIL
IN SUPPORT OF APPELLANT AND
IN SUPPORT OF REVERSAL
_____________________________________________________________
Ann Elizabeth Reesman*
Corrie L. Fischel
McGUINESS & WILLIAMS
1015 Fifteenth Street, N.W.
Suite 1200
Washington, D.C. 20005
(202) 789-8600
Attorneys for Amicus Curiae
Equal Employment Advisory
Council
March 19, 1999
*Counsel of Record
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................. ii
INTEREST OF THE AMICUS CURIAE ...............................................................1
STATEMENT OF THE CASE ...............................................................................4
SUMMARY OF THE ARGUMENT ......................................................................6
ARGUMENT..........................................................................................................7
I.
THE ADA PERMITS A "BUSINESS NECESSITY" DEFENSE FOR
ANY QUALIFICATION STANDARD OR SELECTION
CRITERION, INCLUDING THOSE BASED PARTLY OR
ENTIRELY ON SAFETY CONCERNS .........................................................7
A. The Statutory Language Unequivocally Establishes a "Business
Necessity" Defense for Qualification Standards and Selection
Criteria .....................................................................................................7
B. The Legislative History Corroborates That the Business
Necessity Defense Is Available and Applicable to Safety-Related
Physical Criteria ........................................................................................8
C. The EEOC's Contention That Safety-Based Policies Must Meet
The "Direct Threat" Test, and Cannot Be Justified Under a
"Business Necessity" Standard, Is Illogical and Contrary to
Law ........................................................................................................12
D. Public Policy Dictates That Employers Be Permitted to Develop
and Apply Adequate Safety Standards.....................................................17
II.
THE COURT BELOW ERRED BY DEFERRING TO EEOC'S
INTERPRETIVE GUIDANCE UNDER THE CHEVRON DOCTRINE ......19
CONCLUSION.....................................................................................................28
TABLE OF AUTHORITIES
CASES
Bragdon v. Abbott,
524 U.S. 624 (1998) .......................................................................................3, 21
Buckingham v. United States,
998 F.2d 735 (9th Cir. 1993) ................................................................................3
Burch v. Coca-Cola Co.,
119 F.3d 305 (5th Cir. 1997), cert. denied,
118 S. Ct. 871 (1998) ...........................................................................................3
Central Midwest Interstate Low-Level Waste Commission v. Pena,
113 F.3d 1468 (7th Cir. 1997) ............................................................................20
Chevron, U.S.A. v. Natural Resources Defense Council,
467 U.S. 837 (1984) ............................................................................... 19, 21, 22
Daugherty v. City of El Paso,
56 F.3d 695 (5th Cir. 1995), cert. denied,
516 U.S. 1172 (1996) .........................................................................................17
EEOC v. Amego, Inc.,
110 F.3d 135 (1st Cir. 1997) ..............................................................................17
EEOC v. Exxon Corp.,
967 F. Supp. 208 ............................................................................................5, 27
I.N.S. v. Cardoza Fonseca,
480 U.S. 421, 447-48 (1987) ..............................................................................22
Jacks v. Crabtree,
114 F.3d 983 (9th Cir. 1997), cert. denied,
118 S. Ct. 1196 (1998) .......................................................................................20
Massachusetts v. FDIC,
102 F.3d 615 (1st Cir. 1996) ..............................................................................20
ii
McDaniel v. Mississippi Baptist Medical Center,
74 F.3d 1238 (5th Cir. 1995) ................................................................................3
McDaniel v. Mississippi Baptist Medical Ctr.,
877 F. Supp. 321 (S.D. Miss. 1995), aff'd without op.,
74 F.3d 1238 (5th Cir. 1995) ..............................................................................16
Prewitt v. United States Postal Service,
662 F.2d 292 (5th Cir. 1981) ..............................................................................15
Rogers v. International Marine Terminals,
87 F.3d 755 (5th Cir. 1996) ..................................................................................3
School Board of Nassau County v. Arline,
480 U.S. 273 (1987) ...........................................................................................13
Sharpe v. American Telephone & Telegraph Co.,
66 F.3d 1045 (9th Cir. 1995) ................................................................................3
Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944) ...................................................................................21
Southern Ute Indian Tribe v. AMOCO Production Co.,
119 F.3d 816 (10th Cir. 1997), on reh'g en banc, adopted and modified on
other grounds, 151 F.3d 1251 (1998), cert. granted,
119 S. Ct. 899 (1999) .........................................................................................20
Washington v. HCA Health Services,
152 F.3d 464 (5th Cir. 1998), petition for cert. filed,
No. 98-1365, 67 U.S.L.W. 3561 (Dec. 2, 1998) ...........................................20, 21
STATUTES
Administrative Procedure Act,
5 U.S.C. § 553 ...................................................................................................20
Americans with Disabilities Act (ADA or the Act),
42 U.S.C. § 12101 et seq., ....................................................................................1
42 U.S.C. §§12111-12117 .............................................................................6, 7
42 U.S.C. § 12112(b)(6) ..........................................................................6, 8, 22
iii
42 U.S.C. § 12113(a) ............................................................................3, 5, 6, 8
42 U.S.C. § 12113(b) ...................................................................... 5, 12, 17, 22
Rehabilitation Act of 1973,
29 U.S.C. § 701 et seq. .......................................................................................15
29 U.S.C. § 793 .................................................................................................2
LEGISLATIVE HISTORY
H.R. Conf. Rep. No. 101-558 (1990) .............................................................10, 11
H.R. Rep. No. 101-485, pt. 2 (1990), reprinted in
1990 U.S.C.C.A.N. 303 ..................................................................... 9, 10, 11, 13
H.R. Rep. No. 101-485, pt. 3 (1990), reprinted in
1990 U.S.C.C.A.N. 445 ...............................................................................10, 14
S. Rep. No. 101-116 (1989) .......................................................................9, 10, 13
REGULATIONS
29 C.F.R. Part 1630 Appendix
29 C.F.R. App. § 1630.10 ...........................................................................24, 27
29 C.F.R. App. § 1630.15(b) and (c) ...........................................................12, 25
56 Fed. Reg. 8578-8603 (1991) ............................................................................25
56 Fed. Reg. 8578-8591 (1991) ............................................................................23
56 Fed. Reg. 8578 (1991) .......................................................................................4
56 Fed. Reg. 8588 (1991) .....................................................................................23
56 Fed. Reg. 8588-90 (1991) .........................................................................23, 25
56 Fed. Reg. 8591-8603 (1991) ............................................................................23
56 Fed. Reg. 8602 (1991) .....................................................................................24
56 Fed. Reg. 35733 (1991) .............................................................................25, 26
56 Fed. Reg. 35749 (1991) ...................................................................................26
56 Fed. Reg. 35752 (1991) .............................................................................24, 26
iv
The Equal Employment Advisory Council, pursuant to F.R.A.P. 29,
respectfully submits this brief amicus curiae with the consent of all parties.
This brief urges the Court to reverse the district court's summary judgment
order holding that Defendant-Appellant Exxon Corporation may not use a
“business necessity” defense. The brief thus supports the position of
Defendant-Appellant Exxon Corporation before this Court.
INTEREST OF THE AMICUS CURIAE
The Equal Employment Advisory Council (EEAC or the Council) is a
nationwide association of employers organized in 1976 to promote sound
approaches to the elimination of employment discrimination. Its
membership includes over 300 major U.S. corporations. EEAC's directors
and officers include many of industry's leading experts in the field of equal
employment opportunity. Their combined experience gives the Council a
unique depth of understanding of the practical, as well as legal,
considerations relevant to the proper interpretation and application of equal
employment policies and requirements. EEAC's members are firmly
committed to the principles of nondiscrimination and equal employment
opportunity.
All of EEAC's members are employers subject to the Americans with
Disabilities Act (ADA or the Act), 42 U.S.C. § 12101 et seq., and other
equal employment statutes and regulations. In addition, many are federal
contractors subject to Section 503 of the Rehabilitation Act of 1973, 29
U.S.C. § 793.
EEAC’s members include manufacturing companies, oil refineries,
airlines, pharmaceutical manufacturers, railroads, health care providers,
nuclear power companies, and emergency relief organizations. In each of
these companies, there are positions in which the ability to meet certain
established physical standards is critical to the performance of essential job
functions. For the ADA to force employers to place or retain unqualified
employees in some of these positions would jeopardize the safety and wellbeing of consumers, passengers, coworkers, the general public, and the
environment. It likewise would place employers in a position where
substandard safety precautions taken by an employee could have disastrous
consequences resulting in public outrage, great expense, significant legal
liability, and loss of consumer confidence and good will. In other positions,
meeting necessary physical criteria is necessary for good job performance,
affecting product quality, customer service, and the like.
Accordingly, the issue presented in this appeal is extremely important
to the nationwide constituency of employers that EEAC represents. The
district court below ruled that an employer can never defend against an ADA
2
challenge to a safety-based qualification standard by showing that the
standard is “job related and consistent with business necessity” pursuant to
42 U.S.C. § 12113(a). This narrow view is contrary to the law and would
impose on employers a burden never intended by Congress.
Because of its interest in the application of the nation's civil rights
laws, EEAC has filed over 440 briefs as amicus curiae in cases before the
United States Supreme Court, the United States Circuit Courts of Appeals
and various state supreme courts. As part of this amicus activity, EEAC has
participated in cases in the Supreme Court, and in this and other Circuits,
involving the proper interpretation of the Americans with Disabilities Act.1
EEAC also has filed briefs in numerous cases involving the proper
interpretation of the Rehabilitation Act of 1973, the predecessor to the ADA,
and other laws prohibiting discrimination on the basis of disability.2
Moreover, EEAC filed extensive comments in response to the Equal
Employment Opportunity Commission's Notice of Proposed Rulemaking on
1
E.g., Bragdon v. Abbott, 524 U.S. 624 (1998); Burch v. Coca-Cola Co.,
119 F.3d 305 (5th Cir. 1997) (alcoholism), cert. denied, 118 S. Ct. 871
(1998); Rogers v. International Marine Terminals, 87 F.3d 755 (5th Cir. 1996)
(definition of “disability"); McDaniel v. Mississippi Baptist Medical Ctr., 74
F.3d 1238 (5th Cir. 1995) (drug use).
2
E.g., Buckingham v. United States, 998 F.2d 735 (9th Cir. 1993)
(Rehabilitation Act); Sharpe v. American Tel. & Tel. Co., 66 F.3d 1045 (9th
Cir. 1995) (Washington state law).
3
its substantive regulations implementing the employment provisions of the
ADA. 56 Fed. Reg. 8578 (1991) (codified at 29 C.F.R. Part 1630).
Thus, EEAC has an interest in, and a familiarity with, the issues and
policy concerns presented to the Court in this case. Indeed, because of its
significant experience in these matters, EEAC is uniquely situated to brief
this Court on the importance of the issues beyond the immediate concerns of
the parties to the case.
STATEMENT OF THE CASE
On March 24, 1989, the supertanker M/V EXXON VALDEZ ran aground
on a reef in Prince William Sound, Alaska, dumping eleven million gallons
of oil into the water. (R. Excerpts (5) at 10.) It was alleged, both in the
courts and in the press, that Captain Joseph Hazelwood, an individual with
alcoholism who had been through rehabilitation, was intoxicated at the time.
(R. Excerpts (9) at 184-85.) The disaster made national headlines for
months, and cost Exxon billions in clean-up costs, settlements, and the like.
(R. Excerpts (5) at 9.) The Government also indicted Exxon on criminal
negligence charges. (Id.)
Shortly after the shipwreck, facing Government criticism, Exxon
adopted a revised “Statement of Policy Regarding Employee Alcohol and
Drug Use.” (R. Excerpts (9) at 184.) The Policy prohibits any employee
4
with a present or past substance abuse problem from holding one of a limited
number of “designated positions.” EEOC v. Exxon Corp., 967 F. Supp. 208,
208-209. The policy targets positions in which “(1) there is a high exposure
to catastrophic public, environmental, or employee incident; (2) the person
in such position performs a key and direct role in the operating process
where failure could cause a catastrophic incident; and (3) there is either no
direct supervision or very limited supervision. Id. at 209. At the same time,
the policy provides that “No employee with alcohol or drug dependency will
be terminated due to the request for help in overcoming that dependency or
because of involvement in a rehabilitation effort.” Id. at 209 n.1.
The Equal Employment Opportunity Commission (EEOC) sued
Exxon, claiming that the policy violates the ADA. Id. at 208. During the
course of the litigation, the court below granted the EEOC’s motion for
summary judgment with respect to Exxon’s attempt to defend its policy as
being “job related and consistent with business necessity” under 42 U.S.C.
§ 12113(a), holding that this defense was unavailable in safety-related cases,
which instead were subject to the “direct threat” standard of 42 U.S.C.
§ 12113(b). (R. Excerpts (2) at 2363-64.) This appeal followed.
5
SUMMARY OF ARGUMENT
Title I of the Americans with Disabilities Act, 42 U.S.C. §§1211112117 (ADA), which generally prohibits discrimination in employment on
the basis of disability, provides explicitly that a job qualification standard
that screens out an individual or individuals with disabilities may be
defended on grounds of “business necessity.” 42 U.S.C. § 12112(b)(6); 42
U.S.C. § 12113(a). The legislative history corroborates that the defense is
available and applicable to safety-related criteria. Accordingly, the EEOC’s
contention that safety-based policies must meet the “direct threat” test and
cannot be justified under a “business necessity” standard is illogical and
contrary to law. Moreover, public policy dictates that employers be
permitted to develop and apply adequate safety standards.
Finally, the Court below erred by deferring to EEOC's position in this
case based on the Chevron doctrine. As this Court recently concluded, the
Chevron doctrine does not apply to agency "interpretive rules" such as the
interpretive guidance relied upon by EEOC and the district court in this case.
Instead, the level of deference that should be accorded such rules depends on
factors such as the circumstances of their promulgation, their consistency,
the consideration that has gone into their formulation, and the nature of the
agency's expertise. In short, the level of deference due interpretive rules is
6
based largely on the persuasiveness or merit of those rules. The EEOC
guidance at issue in this case fares poorly under this test, and should be
accorded little, if any, deference by the Court.
ARGUMENT
I.
THE ADA PERMITS A “BUSINESS NECESSITY”
DEFENSE FOR ANY QUALIFICATION STANDARD OR
SELECTION CRITERION, INCLUDING THOSE BASED
PARTLY OR ENTIRELY ON SAFETY CONCERNS
A.
The Statutory Language Unequivocally Establishes a
“Business Necessity” Defense for Qualification
Standards and Selection Criteria
Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 1211112117 (ADA or the Act), which prohibits discrimination in employment on
the basis of disability, twice provides explicitly for a “business necessity”
defense. First, Section 102(b) of the ADA, which defines the term
“discriminate” as used in the general prohibition of Section 102(a), states in
relevant part that:
(b) CONSTRUCTION-As used in subsection (a), the term
“discriminate” includes—
(6) using qualification standards, employment tests or other
selection criteria that screen out or tend to screen out an
individual with a disability or a class of individuals with
disabilities unless the standard, test or other selection
criteria, as used by the covered entity, is shown to be jobrelated for the position in question and is consistent with
business necessity.
7
42 U.S.C. § 12112(b)(6) (emphasis added). Thus, the statutory provision
raising the possibility that a qualification standard or selection criterion
might discriminate negates that possibility where the standard or criterion “is
shown to be job related for the position in question and is consistent with
business necessity.” Id.
Second, the statutory language provides a defense in much the same
terms, stating:
IN GENERAL—It may be a defense to a charge of
discrimination under this Act that an alleged application of
qualification standards, tests, or selection criteria 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, and such performance
cannot be accomplished by reasonable accommodation, as
required under this title.
42 U.S.C. § 12113(a) (emphasis added). The inclusion of this defense
makes it doubly clear that qualification standards or selection criteria that are
“job related” and “consistent with business necessity” are permissible under
the ADA even if they screen out individuals with disabilities.
B.
The Legislative History Corroborates That the
Business Necessity Defense Is Available and
Applicable to Safety-Related Physical Criteria
Where the language of a statute is clear, there is no need to refer to the
legislative history. Nevertheless, the legislative history of the ADA
8
confirms the availability of the “business necessity” defense for both
qualification standards and selection criteria, including those dealing with
physical criteria tied to safe performance of the job. Both Congressional
committees with direct authority over this part of the legislation, the Senate
Committee on Labor and Human Resources, and the House Committee on
Education and Labor, made this point.
Under this legislation an employer may still devise physical and
other job criteria and tests for a job so long as the criteria or
tests are job-related and consistent with business necessity.
Thus, for example, an employer can adopt a physical criterion
that an applicant be able to lift fifty pounds, if that ability is
necessary to an individual’s ability to perform the essential
function in question.
S. Rep. No. 101-116, at 27 (1989). See also H.R. Rep. No. 101-485, pt. 2, at
56 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 338. Both Committees
explained this provision as a “requirement that job criteria actually measure
ability required by the job” to guard against employment decisions based on
“stereotypes and misconceptions about the abilities, or more correctly, the
inabilities, of persons with disabilities . . . .” S. Rep. No. 101-116, at 37;
H.R. Rep. No. 101-485, pt.2, at 71, reprinted in 1990 U.S.C.C.A.N. at 353.
They explained:
If a person with a disability applies for a job and meets all
selection criteria except one that he or she cannot meet because
of a disability, the criteria must concern an essential, non
marginal aspect of the job, and be carefully tailored to measure
9
the person’s actual ability to do an essential function of the job.
If the criteria meets this test, it is nondiscriminatory on its face
and it is otherwise lawful under the legislation.
S. Rep. No. 101-116, at 37-38; H.R. Rep. No. 101-485, pt. 2, at 56, reprinted
in 1990 U.S.C.C.A.N. at 353-54. See also, H.R. Rep. No. 101-485, pt. 3, at
32 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 454-55.3
Importantly, the ADA’s legislative history also confirms that
Congress intended for safety-based medical standards to be evaluated under
the “business necessity” rule. As the House Committee on the Judiciary
stated, “The Committee does not intend for this Act to override any
legitimate medical standards established by federal, state or local law, or by
employers for applicants for safety or security sensitive positions, if the
medical standards are consistent with [the ADA].” H.R. Rep. No. 101-485,
pt. 3, at 43, reprinted in 1990 U.S.C.C.A.N. at 466. See also H.R. Rep. No.
101-485, pt. 2, at 74, reprinted in 1990 U.S.C.C.A.N. at 357; H.R. Conf.
Rep. No. 101-558, at 59-60. Indeed, the House Labor Committee focused
specifically on safety-sensitive positions in explaining when medical
examinations for employees might be “job related and consistent with
business necessity,” stating:
The explanation continues that “the criteria may not be used to exclude an applicant
with a disability if the criteria can be satisfied by the applicant with a reasonable
accommodation. A reasonable accommodation may entail adopting an alternative,
3
10
Section 102(c)(4) prohibits medical exams of employees unless
job related and consistent with business necessity. Certain jobs
require periodic physicals in order to determine fitness for duty.
For example, Federal safety regulations require bus and truck
drivers to have a medical exam at least biennially. In certain
industries, such as air transportation, physical qualifications for
some employees are critical. Those employees, for example,
pilots, may have to meet medical standards established by
Federal, State or local law or regulation, or otherwise fulfill
requirements for obtaining a medical certificate, as a
prerequisite for employment. In other instances, because a
particular job function may have a significant impact on public
safety, e.g. flight attendants, an employee’s state of health is
important in establishing job qualifications, even though a
medical certificate might not be required by law.
H.R. Rep. No. 101-485, pt. 2, at 74, reprinted in 1990 U.S.C.C.A.N. at 35657. Similarly, the Conference Report explains:
[I]n certain industries, such as air transportation, applicants for
security and safety related positions are normally chosen on the
basis of many competitive factors, some of which are identified
as a result of post-offer pre-employment medical examinations.
Thus, after the employer receives the results of the post-offer
medical examination for applicants for safety or security
sensitive positions, only those applicants who meet the
employer’s criteria for the job must receive confirmed offers of
employment, so long as the employer does not use those results
of the exam to screen out qualified disabled individuals on the
basis of disability.
H.R. Conf. Rep. No. 101-558, at 59 (emphasis added). Thus, the legislative
history supports the appropriateness of the “business necessity” defense to
respond to a challenge to a safety-based physical standard.
less discriminatory criterion.” The Committees, did not, however, suggest any
11
C.
The EEOC’s Contention That Safety-Based Policies
Must Meet The “Direct Threat” Test, and Cannot Be
Justified Under a “Business Necessity” Standard, Is
Illogical and Contrary to Law
The EEOC takes the position that the only way a safety-related
qualification standard or selection criterion can be shown to be “job related
and consistent with business necessity” is by showing that “the individual
poses a direct threat to the health and safety of others.” 29 C.F.R. App.
§ 1630.15(b) and (c); (R. Excerpts (3) at 908). Not only is this position
contrary to the unambiguous statutory language discussed above, but it
defies logic as well.
The Commission’s interpretation ostensibly is based on Section
103(b) of the ADA, which directly follows Section 103(a)’s general
discussion of qualification standards and the “business necessity” defense.
Section 103(b) then provides that “[t]he 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.” 42 U.S.C. §
12113(b).
Thus, “direct threat” is a subset of the more general “qualification
standards” provision, in that one possible “qualification standard” is that the
individual not pose a direct threat. The Government’s construction
standards for how such a criterion could or should be identified or evaluated.
12
improperly reverses the two sections of Section 103 so that the “direct
threat” analysis predominates over the “business necessity” provision, in
direct conflict with the statutory language.
The legislative history reflects the separate and independent genesis
and import of these two provisions. When the Senate Labor Committee
considered the bill that became the ADA, the “qualification standards”
provision appeared in its present form, while the “direct threat” provision
addressed only “an individual with a currently contagious disease or
infection.” S. Rep. No. 101-116 at 40. The Committee discussed the two
separately. Far from suggesting that all safety-related qualification
standards would be subjected to a “direct threat” analysis, the Committee
explained that the “direct threat” provision then was intended to codify the
Supreme Court’s requirement in School Board of Nassau County v. Arline,
480 U.S. 273 (1987), of an individualized showing of significant risk before
an individual with a contagious disease can be screened out of a job. Id.
The House Committee on Education and Labor took the same approach.
H.R. Rep. No. 101-485, pt. 2, at 76, reprinted in 1990 U.S.C.C.A.N. at 35859.
The House Committee on the Judiciary likewise treated the “direct
threat” provision as a subset of the broader “qualification standards”
13
provision. First, the Committee pointed out that employers may set physical
criteria as qualification standards so long as they are “job related and
consistent with business necessity.” H.R. Rep. No. 101-485, pt. 3, at 45,
reprinted in 1990 U.S.C.C.A.N. at 368. The Committee used a 50-lb lifting
restriction —a physical criterion grounded, at least in part, in safety—as an
example. While the Committee then expanded the “direct threat” provision
to cover all individuals with disabilities, it retained its structure as merely
one type of qualification standard. Thus, after discussing the general
“qualification standards,” and using a physical criterion as an example, the
Committee went on to explain “direct threat” and summarized, “If the
applicant is otherwise qualified for the job, he or she cannot be disqualified
on the basis of a physical or mental condition unless the employer can
demonstrate that the applicant’s disability poses a direct threat to others in
the workplace." Id. at 45-46, reprinted in 1990 U.S.C.C.A.N. at 469
(emphasis added).
Accordingly, both the statutory language and the legislative history
support the more logical construction that “direct threat” is merely one type
of qualification standard, not an overarching requirement applicable to all
safety-related medical standards. Generally applicable physical criteria are
subject to a “business necessity” analysis based on the functions of the
14
particular job.4 At the same time, an individual who meets all of the
employer’s qualification standards —including physical criteria —for the
job still may be excluded based on a particular condition, but only if placing
the person in the job would present a “direct threat” to health and safety.
Thus, contrary to the EEOC’s argument that Exxon’s construction
makes Section 103(b) superfluous, the result is exactly the opposite. The
EEOC’s argument would make Section 103(a) nearly superfluous, by
requiring that all safety-related medical standards go through the “direct
threat” analysis and virtually eliminating the “business necessity” defense.
The EEOC may argue that the qualification standard at issue here—
Exxon’s policy of preventing substance abusers from holding designated
safety-sensitive positions —is subject to a “direct threat” standard because it
excludes a particular group of individuals, substance abusers. Such a
construction, however, would preclude the use of any physical criteria, and
thus conflicts with the statute. Vision standards undoubtedly will screen out
individuals with severe vision impairments, yet the statute permits a vision
standard that is job related and consistent with business necessity. As the
Report of the House Committee on the Judiciary reveals, a 50 lb. lifting
standard is permitted if “job related and consistent with business necessity”
4
This analysis likewise is consistent with that used by this Court under the
15
even though it will remove from consideration individuals with serious
lower back impairments.
Arguably, some physical criteria standards could be solely
performance-based, with no safety components, which would remove them
from the category for which the EEOC requires a ‘direct threat’ analysis.
See McDaniel v. Mississippi Baptist Medical Ctr., 877 F. Supp. 321 (S.D.
Miss. 1995) (holding that employer’s sobriety policy was valid business
qualification for position of marketing representative for drug treatment
center, since noncompliance affected, at least from public relations
perspective, ability to perform essential function of interviewing prospective
patients), aff’d without op., 74 F.3d 1238 (5th Cir. 1995). The EEOC’s
construction thus would subject standards created in whole or in part for
safety based reasons to a more difficult standard than those based on job
performance or other reasons. While the quality of job performance
admittedly is important, it seems illogical to require higher proof for safety
standards.5 Cf. EEOC v. Amego, Inc., 110 F.3d 135 (1st Cir. 1997)
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. See Prewitt v. United States Postal
Service, 662 F.2d 292, 310 (5th Cir. 1981).
5
Indeed, given that the "direct threat" provision extends only to "the health
and safety of other individuals in the workplace," 42 U.S.C. § 12113(b), the
EEOC's interpretation would seem to permit Exxon to justify its policy as
"business necessity" if it were adopted only for environmental or liability
16
(rejecting the EEOC’s position that “direct threat” defense of safety
requirement is part of employer’s burden of proof, noting that “[t]he position
argued by the EEOC would lead to the anomalous result that there is a lesser
burden or proving qualifications on a plaintiff where the job involves the
care of others, and necessarily entails risk to others, than when the job does
not.”).6
D.
Public Policy Dictates That Employers Be Permitted
To Develop and Apply Adequate Safety Standards
It is difficult to believe that Congress intended to discourage the
development of safety standards in the workplace through passage of the
ADA. A ruling that employers cannot set qualification standards that are job
related and consistent with business necessity to evaluate the qualifications
of particular individuals for particular jobs could achieve just such a result.
It is important that businesses and industries collectively attempt to selfregulate in the interest of public safety. Businesses may not, however,
continue to make the effort to participate in self-regulation if such efforts
will actually result in legal liability. Punishing employers who adopt
reasons—but require the stricter approach once the word safety is mentioned.
This seems to be backwards.
Notably, when this Court ruled in Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir.
1995), cert. denied, 516 U.S. 1172 (1996), that an individual with insulin-dependent
diabetes was not “otherwise qualified” for a position as a city bus driver because his
disability posed a “substantial risk” as a matter of law, the Court did not require proof
on an individualized basis.
6
17
legitimate safety-related criteria will create a disincentive to maintain needed
safety standards.
Public policy dictates that employers be permitted to develop and
apply safety standards to determine if an employee is qualified. As this case
demonstrates, employers face bad publicity if they are perceived as
endangering the safety of the general public. In addition, both private
citizens and the government can sue employers if an employer’s actions
compromise the safety of the public, or even natural resources.
Accordingly, employers must take preventive measures to ensure that
employees are able to perform the essential functions of their jobs in a safe
manner. An employer that fails to do so will have a difficult time
convincing a jury that it should not be accountable for damages because it
was fulfilling its obligation under the ADA. While compliance with the
ADA, as a federal law, may in theory preempt a state tort law claim, once an
accident has occurred, it will be difficult for an employer to show that it
could not tell at the time that imminent danger was possible when standards,
designed to show what criteria are necessary, were available.
Reasonableness is the guiding principle of the ADA. It is not
reasonable to forbid an employer from relying on standards designed to
protect the safety of the general public. Public policy warrants an
18
interpretation of the ADA that reconciles the reasons why the ADA was
passed: to promote the employment of qualified individuals with disabilities;
to ensure that they are qualified based on sound business necessity rather
than myth or stereotype; and to protect the safety of the general public.
II.
THE COURT BELOW ERRED BY DEFERRING TO EEOC'S
INTERPRETIVE GUIDANCE UNDER THE CHEVRON
DOCTRINE
In its decision below, the district court relied on the so-called Chevron
doctrine to sustain EEOC's position in this case. (R. Excerpts (2) at 236364): R. Excerpts (3) at 906-07). In this respect, the lower court committed
clear error that should be reversed by the Court.
In Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S.
837, 842-43 (1984), the Supreme Court announced the now well-settled
standard for reviewing agency regulations:
First, always, is the question of whether Congress has directly
spoken to the precise question at issue. If the intent of
Congress is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously
expressed intent of Congress. If, however, the court determines
Congress has not directly addressed the precise question at
issue, the court does not simply impose its own construction on
the statute, as would be necessary in the absence of an
administrative interpretation. Rather, if the statute is silent or
ambiguous with respect to the specific issue, the question for
the courts is whether the agency's answer is based on a
permissible construction of the statute.
19
Consistent with the majority of sister circuits, however, this Court
recently made clear that the full Chevron analysis does not apply to EEOC's
interpretive guidance, which consists of "interpretive rules" not subject to
the strictures of the rulemaking procedures of the Administrative Procedure
Act, 5 U.S.C. § 553. Washington v. HCA Health Services, 152 F.3d 464,
469 (5th Cir. 1998), petition for cert. filed, No. 98-1365, 67 U.S.L.W. 3561
(Dec. 2, 1998).7 Instead, this Court held that the deference due such rules
varies along a sliding scale depending upon several factors, such as "the
circumstances of their promulgation, the consistency with which the agency
has adhered to the position announced, the evident consideration which has
gone into its formulation, and the nature of the agency's expertise."
Washington, 152 F.3d at 470. In short, the level of deference due
interpretive guidance is based largely on the persuasiveness or merit of that
guidance. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Bragdon v.
Abbott, 118 S. Ct. 2196, 2207 (1998).
See also Cent. Midwest Interstate Low-Level Waste Comm'n v. Pena, 113 F.3d 1468,
1473 (7th Cir. 1997) ("we do not apply Chevron's "rubber stamp" to interpretive rules");
Jacks v. Crabtree, 114 F.3d 983, 985 n.1 (9th Cir. 1997) (Chevron applies to legislative
rules, not policy guidance), cert. denied, 118 S. Ct. 1196 (1998); Southern Ute Indian
Tribe v. AMOCO Prod. Co., 119 F.3d 816, 833 (10th Cir. 1997), on reh'g en banc,
adopted and modified on other grounds, 151 F.3d 1251 (1998), cert. granted, 119 S. Ct.
899 (1999); Massachusetts v. FDIC, 102 F.3d 615, 621 (1st Cir. 1996) (policy
pronouncements less formal than legislative rules "are not accorded full Chevron
deference"); Kenneth Davis & Richard Pierce, Jr., Administrative Law Treatise § 3.5 at
120 (3d ed. 1994) ("Courts . . . should not give binding effect to interpretive rules or
statements of policy under Chevron").
7
20
We note, however, that the Court's Washington decision did not alter
the first step in any deference analysis. Before proceeding to consider the
level of deference to accord an agency rule—any agency rule—the court
must first look to whether any deference should be accorded (i.e. whether
the statute is silent or ambiguous). Washington, 152 F.3d at 469. "First,
always, is the question of whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress." Chevron, 467 U.S. at 84243. Moreover, the judiciary's duty in this regard is not discretionary. "If a
court, employing traditional tools of statutory construction, ascertains that
Congress had an intention on the precise question at issue, that intention is
the law and must be given effect." Id. at 843 n.9. See, also, I.N.S. v.
Cardoza Fonseca, 480 U.S. 421, 447-48 (1987).
Thus, as a preliminary matter, we point out that EEOC's interpretive
guidance at issue in this case does not even warrant a discussion regarding
the level of deference, as it does not survive this threshold first step. As
demonstrated above, the plain language of the statute and its legislative
history clearly state that selection criteria that are job-related and consistent
with business necessity shall not be construed as discriminatory, even where
21
they tend to screen out individuals with disabilities. 42 U.S.C. §§ 12112(b),
12113(a). Thus, the statute is not ambiguous but clearly permits any acrossthe-board selection criteria that are job-related and consistent with business
necessity. That the statute presents a separate and distinct defense that
"'qualification standards' may include a requirement that an individual shall
not pose a direct threat to the health and safety of other individuals in the
workplace," 42 U.S.C. § 12113(b), does not render the clear statutory
meaning of discrimination ambiguous. Because the statute is unambiguous
on this question, there is no need to proceed to a determination regarding the
level of deference due the agency on this point.
Nevertheless, assuming arguendo that the Congressional intent was
less than clear, the EEOC interpretive rule at issue here would command
little, if any, deference under the Washington test.
First, the circumstances of this rules promulgation are particularly
dubious. In February 1991, when EEOC issued its proposed ADA rules, and
first published its guidance, the only reference to safety-related
qualifications was contained in the definitional section of the regulations as
follows:
Qualifications standards means the personal and professional
attributes including the skill, experience, education, physical,
medical, safety and other requirements established by a covered
entity as requirements which an individual must meet in order
22
to be eligible for the position held or desired. Qualification
standards may include a requirement that an individual not pose
a direct threat to the health or safety of the individual or others.
56 Fed. Reg. 3888 (1991). The proposed regulations further provided,
consistent with the statute, that an employer lawfully could maintain such
qualification standards if they were job-related and consistent with business
necessity. 56 Fed. Reg. 8589, 8590 (1991). Nowhere in the proposed
regulations, or in the interpretive guidance as originally drafted, was there
any indication that safety-related job qualifications would be subject to a
different substantive legal standard. See generally 56 Fed. Reg. 8578-8591
(1991) (proposed rules); 56 Fed. Reg. 8591-8603 (1991) (interpretive
guidance). Indeed, the original interpretive guidance did not even mention
safety-related job qualifications, let alone include the current provision that
substantively alters the legal standard for such qualifications. 56 Fed. Reg.
8602 (1991). It was not until EEOC published its final regulations, that the
agency slipped this "direct threat" requirement into its interpretive guidance.
See 56 Fed. Reg. 35752 (1991). Thus, the circumstances of the
promulgation of the particular rule at issue in this case clearly are
questionable.
Based on these same circumstances, it also becomes evident that the
agency has not consistently maintained its present interpretation of the
23
Act—the second Washington deference factor. Indeed, the agency's very
first interpretation of the provisions at issue here did not in any way
distinguish between the legal standards that must be satisfied in order to
maintain safety-related job qualifications and other work-related
qualifications. See 56 Fed. Reg. 8602 (1991).8 Moreover, the agency's
present interpretive guidance is not even consistent on this point. Compare
29 C.F.R. App. § 1630.10 (the job-related and consistent with business
necessity standard "is applicable to all types of selection criteria, including
safety requirements, vision or hearing requirements, walking requirements,
lifting requirements, and employment tests") with 29 C.F.R. App. § 1630.15
(b) and (c) (safety requirements must meet the "direct threat" standard).
It is with respect to the third Washington factor—the evident
consideration which has gone into its formulation—that EEOC's interpretive
rule most egregiously fails. In truth, apparently no consideration went into
the formulation of this particular rule.
As noted above, the interpretive rule applying the "direct threat"
standard to safety-related job qualifications was not present in form or
substance in either the proposed regulations or interpretive guidance
8
EEOC characterized the original interpretive guidance as "represent[ing]
the Commission's interpretation of the issues discussed . . ." 56 Fed. Reg.
8578 (1991).
24
originally published by the agency. See generally 56 Fed. Reg. 8578-8603
(1991). On the contrary, the proposed regulations and original guidance
gave every indication that all job-related qualifications—including safetyrelated qualifications—would be treated identically. See, e.g., 56 Fed. Reg.
8588-90. It was not until the agency published its final guidance, however,
that it announced that it would apply a separate and distinct legal standard—
the direct threat test—to job qualifications involving safety. Although this
new interpretation constituted, in essence, a new substantive rule of law, and
represented a significant departure from prior policy, EEOC provided no
discussion of, or reasoning for, the new rule. See 56 Fed. Reg. 35733 (1991)
(Analysis of Comments and Revisions to Section 1630.15 Defenses).
Indeed, the agency's Section-by-Section Analysis of Comments and
Revisions did not even note that this particular substantive change in policy
had even been made. See id. To say the least, this is odd considering that
the agency devoted six lines of text to explain a single technical change to
Section 1630.15. See 56 Fed. Reg. 35733 (1991) (explaining that the agency
changed the phrase "individual or class of individuals with disabilities" to
individual with a disability or class of individuals with a disabilities").
The actual interpretive guidance similarly provides no reasoning for
the change. Moreover, the agency cited no support whatsoever for the new
25
interpretation of the Act. See 56 Fed. Reg. 35752 (1991). This is in stark
contrast to EEOC's conflicting interpretive rule that the job-related/business
necessity provision "is applicable to all types of selection criteria, including
safety requirements, vision or hearing requirements, walking requirements,
lifting requirements, and employment tests." 56 Fed. Reg. 35749 (1991).
There, the agency cited three separate Congressional reports to support its
conclusion. Id. In short, apparently no real consideration went into the
formulation of the interpretive rule at issue in this case.
Finally, the fourth Washington factor also weighs against deference in
this case. While EEOC may possess expertise with regard to disability
issues, it has little if any experience or expertise with regard to workplace
safety. Indeed, Congress has created an entirely separate agency—OSHA—
to deal with such matters. In any event, EEOC essentially has admitted that
it has no special expertise in business matters. Cf. 29 C.F.R. App. § 1630.10
("it is not the intent of [the agency] to second guess an employer's business
judgment with respect to production standards. Consequently production
standards will generally not be subject to challenge under this provision.")
As a result, EEOC is hardly well-situated to sit in judgment on the relative
importance of safety-related, and non-safety-related, job qualifications. Cf.
EEOC v. Amego, Inc., 110 F.3d 135 (1st Cir. 1997) (EEOC's interpretive
26
rule creates the anomaly of a stricter standard for establishing safety-related
job qualifications than other job qualifications).
Because the EEOC interpretive rule at issue here fares poorly under
all of the Washington factors, the Court should accord it little, if any,
deference in this case.
CONCLUSION
For the foregoing reasons, the amicus curiae Equal Employment
Advisory Council respectfully submits that the decision below should be
reversed.
Respectfully submitted,
Ann Elizabeth Reesman*
Corrie L. Fischel
McGUINESS & WILLIAMS
1015 Fifteenth Street, N.W.
Suite 1200
Washington, D.C. 20005
(202) 789-8600
Attorneys for Amicus Curiae
27
Equal Employment Advisory
Council
March 19, 1999
*Counsel of Record
28
Ann Reesman
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