Right to Die

More ADA nonsense

By Dave Kopel

National Review Online, March 27, 2002 8:00 a.m.

If there's a good chance that your job will kill you, does the Americans with Disabilities Act give you a legal right to the job? The Supreme Court is deciding that question this term, in the case of Chevron v. Echazabal. If the Supreme Court follows Justice Scalia's preferred approach to statutory interpretation, employees are going to have a right to speak literally when they say "This job is killing me." If you don't like the result, blame Congress, not the courts.

The case begins in 1972, when Mario Echazabal went to work at a coker unit at a Chevron oil refinery. The coker unit burns petroleum coke (a variety of coal) in the process of making gasoline. In 1992, Echazabal applied to work for Chevron itself, rather than as a contractor. Chevron offered to hire him if he passed a physical exam. The medical exam showed that Echazabal's liver produced unusually high levels of enzymes. Chevron withdrew the job offer, because his liver was especially vulnerable to damage from the solvents and chemicals in the coker unit. Further examinations revealed that the liver enzymes were symptoms of chronic Hepatitis C.

According to the Centers for Disease Control and Prevention, Hepatitis C (HCV) "Occurs when blood or body fluids from an infected person enters the body of a person who is not infected." The disease "is spread through sharing needles or 'works' when 'shooting' drugs, through needlesticks or sharps exposures on the job, or from an infected mother to her baby during birth." HCV frequently causes chronic liver disease. According to the CDC, "Most infections are due to illegal injection drug use," although there were cases of transmission due to tainted blood donations in previous decades. About 2.7 million Americans have chronic HCV.

Chevron did not stop Echazabal from continuing to work for the contractor in the coker unit.

In 1995, Echazabal applied for the same job again, again received a contingent job offer, and again failed the medical exam. Chevron then told the contractor to take Echazabal away from the refinery, and to give him a job where he would not be exposed to solvents and chemicals.

Mr. Echazabal did not, however, thank Chevron for getting him transferred to a safer job. He filed a lawsuit, claiming he had been discriminated against in violation of the Americans with Disabilities Act.

In a split decision, a panel of the Ninth Circuit Court of Appeals upheld Mr. Echazabal's claim, setting the stage for the Supreme Court case.

Under the ADA, a company may not deny a job because of a person's disability. The definition of disability is quite broad, and encompasses harms that are self-inflicted as a result of lifestyle choices — such as contracting HCV by using dirty needles.

A company may discriminate though, under certain limited circumstances. For example, if the disability seriously interferes with an "essential function" of the job in question. In Echazabal's case, he worked in the coker unit for 20 years, so he obviously can perform the job itself.

Suppose a person can actually perform the job, but because of the disability, the job performance would be dangerous? According to the ADA: "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." (ADA section 12113(b).)

Here is the crux of the case: The ADA statute speaks only about "a direct threat to the health or safety of other individuals." Mr. Echazabal is no threat to anyone but himself. The chemicals in the coker unit may kill him, but his bad liver won't endanger anyone else.

Despite the clear language of the statute, the Equal Employment Opportunities Commission wrote a regulation stating that a threat to oneself would be reason for disqualifying someone from a job. By the EEOC regulation, Chevron had a right to refuse to hire Echazabal for a job that could kill him. (There are factual disputes about just how dangerous the job would be for Mr. Echazabal, but at oral argument, Echazabal's lawyer conceded that the legal theory would not change even if there were a 99 percent chance that a job would kill someone within two weeks.)

What about the legal risks that Chevron would assume by hiring Echazabal? To begin with, state criminal laws, such as California's, often impose criminal penalties on companies which fail to provide a safe workplace. For example, the California Labor Code forbids any workplace that "is not safe and healthful," and states that the employer must not "permit" an employee to work in such a place. A "serious" violation, defined as one which involves risk to life (certainly present in Echazabal's case), is a crime. (Cal. Labor Code, sections 6402, 6403, and 6423).

In addition, a wide variety of tort laws allow suits growing out of workplace injuries or deaths. Even if Mr. Echazabal is held to have "assumed the risk," one of his relatives might be allowed to sue Chevron, if Echazabal dies. Further, once Echazabal starts suffering serious illness from his job in the coker unit, he will be entitled to workman's compensation. This will raise Chevron's workman's compensation premiums.

The people who argue that the ADA gives Echazabal a right to the job also argue that criminal and civil liability may be preempted by the Americans with Disabilities Act. Yet the ADA does not explicitly preempt such liability. Perhaps a court might find preemption by implication, but the truth is that no one knows what a court would do.

Thus, employers are faced with a dilemma: Don't let workers destroy themselves, and get sued under the ADA. Or do let workers kill themselves, and get criminally prosecuted and civilly sued, and hope that an appellate court eventually rules in your favor.

Under Justice Scalia's leadership, the Supreme Court has increasingly taken the position that when statutes are clear, administrative agencies (such as the EEOC) should not have the authority to invent conflicting interpretations. If this view prevails in the Chevron case, it's hard to see how Mr. Echazabal can be denied his "right" to a job that may kill him. As demonstrated by skeptical questions by the Justices during oral argument, the arguments in Chevron's favor depend on a strained reading of general language in the ADA ("business necessity") as somehow trumping plain and specific language ("direct threat to the health or safety of other individuals"). The legal maxim is "Expresso unius est exclusio alterius." Or, the expression of one thing (threats to others) is the exclusion of another (threat to oneself).

As Mr. Echazabal's allies point out, the stated objective of the Americans with Disabilities Act was to outlaw "paternalism" in dealing with disabled people. Yet the ADA itself is a monster of paternalism, imposing minute, ridiculous controls on employers throughout the nation. Walter Olson's superb Overlawyered.com website keeps track of the many abuses which the ADA has spawned.

When the ADA was being debated in Congress, many Americans thought that the Act involved things like making buildings accessible to wheelchairs, putting Braille on signs in public places, and similar measures. But these measures to address genuine disabilities are only a small part of the ADA's reach. The preposterously overbroad definition of "disability" includes diseases contracted through voluntary drug abuse with dirty needles. The problem here isn't "pointy-headed bureaucrats" who interpret the law. Nor are courts the problem; their job is to enforce the statute that Congress wrote.

Rather, the problem is Congress and the first President Bush, who together created the most intrusive anti-employer, anti-safety, anti-common sense federal labor law ever. It is neither compassionate nor conservative for Mr. Echazabal to be given a federal right to a job that may kill him. If you want to blame the courts, then blame the Supreme Court during FDR's second term, which adopted the rule that the congressional power "To regulate Commerce…among the several States" meant that Congress could impose a labor code on manufacturing which takes place entirely within the boundaries of a single state. "Commerce" is buying and selling; manufacturing is not commerce, but takes place prior to commerce. An activity within a single state is not "among the several states." Through the California Labor Code, the California government has already balanced worker safety versus worker desire for high-paying but dangerous jobs. Like most of the rest of federal laws about noncommercial, intrastate employment, the Americans with Disabilities Act is a usurpation of power which the Constitution never really granted to Congress.

If you want to complain about cases like Chevron, don't blame the courts for following the statute which Congress created. Blame the courts for ignoring the Constitution and allowing Congress to write the statute in the first place.

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