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Ninth Circuit Deals Yet Another Blow to “Direct Threat” Defense Under ADA

Volume 2, Issue 10
August 20, 2003

In June 2002, a unanimous United States Supreme Court, reversing a prior Ninth Circuit Court decision, held that an employer could lawfully refuse to hire an individual whose employment would endanger his own health and thus pose a "direct threat" to the employee's own well-being. The case involved an applicant, Mario Echazabal, who wanted to work for Chevron in its refinery. Chevron rescinded the job offer after a doctor concluded that Mr. Echazabal's liver condition may be worsened by exposure to chemicals at the job site. The Supreme Court held that the employer's "direct threat" defense must be based on a "reasonable medical judgment [which] relies on the most recent medical knowledge and/or the best available objective evidence" and an expressly "individualized assessment of the individual's present ability to safely perform the essential functions of the job." Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002).

Over a year later, on July 23, 2003, the Ninth Circuit Court applied the Supreme Court's holding and found that Chevron had not satisfied its burden under the direct threat defense. Specifically, the Ninth Circuit held that Chevron had only relied on its own medical experts who had no expertise in liver disease, and thus Chevron was not using the most recent medical knowledge. It also questioned whether Chevron properly assessed the nature of the potential harm as its doctors were unfamiliar with the specific risks associated with the position at issue.

The Court then stated that the Americans with Disabilities Act (ADA) requires more of an assessment before terminating an individual's livelihood.

In a strongly worded dissent, Judge Stephen S. Trott criticized the Court as placing unreasonable pressure on employers to prove an employee is at risk, which will have a "significant pernicious impact on all employers in this Circuit who are doing their best in good faith to comply with the law."

This holding is problematic as it essentially requires an employer to search out an outside medical expert that will have to visit the worksite and prepare a formal individualized assessment of the individual's present ability to safely perform the essential functions of the particular job at issue before the direct threat defense is invoked.

Echazabal v. Chevron USA, Inc., 336 F.3d 1023 (9th Cir. 2003).

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