No. 00-1406 

In the Supreme Court of the United States 

CHEVRON U.S.A., INC., PETITIONER 

v. 

MARIO ECHAZABAL 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE 

NICHOLAS M. INZEO 

Acting Deputy General 

Counsel 

PHILIP B. SKLOVER 

Associate General Counsel 

CAROLYN L. WHEELER 

Assistant General Counsel 

ROBERT J. GREGORY 
Senior Attorney 
Equal Employment 

Opportunity Commission 
Washington, D.C. 20507 
THEODORE B. OLSON 
Solicitor General 

Counsel of Record 

ROBERT D. MCCALLUM, JR. 

Assistant Attorney General 

PAUL D. CLEMENT 

Deputy Solicitor General 

MATTHEW D. ROBERTS 

Assistant to the Solicitor 

General 

MARLEIGH D. DOVER 
MATTHEW M. COLLETTE 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTION PRESENTED 

Whether the Americans with Disabilities Act of 1990 
(ADA), 42 U.S.C. 12101 et seq., permits an employer to 
refuse to hire an individual because his performance of 
the job will, as a result of his disability, pose a direct 
threat to his own health or safety. 

(I) 

TABLE OF CONTENTS 

Page 

Statement ........................................................................................ 1 

Discussion: 8 

I. The court of appeals erred in invalidating the 

EEOC’s regulations ...................................................... 
8 

A. The EEOC’s threat-to-self regulations are 

consistent with the text of the ADA .................. 

8 

B. The court of appeals’ reliance on the 

expressio unius canon was erroneous ............... 

11 

C. The EEOC’s threat-to-self regulations are a 

reasonable interpretation of the ADA .............. 
14 

II. The court of appeals’ decision warrants this 

Court’s review ............................................................... 

16 

Conclusion ....................................................................................... 19 

TABLE OF AUTHORITIES 

Cases: 

Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284 

(10th Cir. 2000) ....................................................................... 

17 

Bragdon v. Abbott, 524 U.S. 624 (1998) ............................. 

15 

Burkett v. United States Postal Serv., 175 F.R.D. 

220 (N.D. W.Va. 1997) .......................................................... 

18 

Burns v. United States, 501 U.S. 129 (1991) ................... 

12-13 

Cheney R.R. v. ICC, 902 F.2d 66 (D.C. Cir.), 

cert. denied, 498 U.S. 985 (1990) ......................................... 

13 

Chevron U.S.A. Inc. v. Natural Res. Def. 

Council, Inc., 467 U.S. 837 (1984) .............................. 

6, 10, 11 

Cobb v. Summers, Appeal No. 01965074, 2000 WL 

366115 (EEOC Apr. 3, 2000) ................................................ 

18 

Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 

1995), cert. denied, 516 U.S. 1172 (1996) ........................... 

7 

EEOC v. Amego, Inc., 110 F.3d 135 (1st Cir. 1997) ........ 

7 

Federal Land Bank v. Bismarck Lumber Co., 314 

U.S. 95 (1941) .......................................................................... 12 

(III) 

IV 

Cases—Continued: Page 

Ford v. United States, 273 U.S. 593 (1927) ....................... 

13 

Haug v. Runyon, Appeal No. 01951337, 1998 WL 

25247 (EEOC Jan. 9, 1998) ................................................... 

18 

Koshinski v. Decatur Foundry, Inc., 177 F.3d 599 

(7th Cir. 1999) ......................................................................... 

17 

LaChance v. Duffy’s Draft House, Inc., 146 F.3d 

832 (11th Cir. 1998) ................................................................ 

7 

Mantolete v. Bolger, 767 F.2d 1416, amended by 38 

Fair Empl. Prac. Cas. (BNA) 1517 (9th Cir. 1985) .......... 

15 

Martini v. Federal Nat’l Mortgage Ass’n, 178 F.3d 

1336 (D.C. Cir. 1999), cert. dismissed, 528 U.S. 1147 

(2000) ........................................................................................ 13 

McClaren v. Dalton, Appeal No. 01960820, 1997 

WL 774840 (EEOC Dec. 5, 1997) ....................................... 

18 

Merrell v. Pirie, Appeal No. 01971565, 2001 WL 

237043 (EEOC Mar. 2, 2001) ................................................ 

18 

Moses v. American Nonwovens, Inc., 97 F.3d 446 

(11th Cir. 1996), cert. denied, 519 U.S. 1118 

(1997) .................................................................................. 

6, 8, 16 

Patterson v. Summers, Appeal No. 01964964, 2000 

WL 366113 (EEOC Apr. 3, 2000) ........................................ 

18 

Pauley v. BethEnergy Mines, Inc., 501 U.S. 680 

(1991) ........................................................................................ 12 

Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 

633 (1990) ................................................................................. 

13 

Pfizer Inc. v. Government of India, 434 U.S. 308 

(1978) ........................................................................................ 12 

Stallings v. Summers, Appeal No. 01964963, 2000 

WL 366114 (EEOC Apr. 3, 2000) ........................................ 

18 

Sutton v. United Air Lines, Inc., 527 U.S. 471 

(1999) ........................................................................................ 10 

United States v. Mead Corp., 121 S. Ct. 2164 

(2001) ........................................................................................ 10 

V 

Case—Continued: Page 

United States v. New York Tel. Co., 434 U.S. 159 

(1977) ........................................................................................ 12 

Statutes and regulations: 

Americans with Disabilities Act of 1990, 42 U.S.C. 

12101 et seq. ................................................................... 

1, 2, 8, 10 

42 U.S.C. 12101(a)(5) ........................................................ 

15 

42 U.S.C. 12101(a)(7) ........................................................ 

15 

Tit. I: 

42 U.S.C. 12111(3) ................................................... 

2, 5, 9, 12 

42 U.S.C. 12111(8) ............................................................. 

1, 7 

42 U.S.C. 12112(a) .................................................. 

1, 7, 16, 17 

42 U.S.C. 12112(b)(6) .................................................. 

2, 9, 11 

42 U.S.C. 12113(a) .................................................. 

2, 9, 11, 12 

42 U.S.C. 12113(b) .............................................. 

2, 5, 9, 11, 12 

42 U.S.C. 12116 ................................................................ 

2, 10 

Tit. V, 42 U.S.C. 12201 .......................................................... 

15 

Rehabilitation Act of 1973, 29 U.S.C. 791-794 (1994 & 

Supp. V 1999) .......................................................................... 

15 

29 C.F.R. Pt. 1630: 

Section 1630.2(r) ........................................... 

3, 6, 8, 9, 16, 17 

Section 1630.15(b)(1) ......................................................... 

2-3 

Section 1630.15(b)(2) ..................................................... 

3, 6, 9 

App. § 1630.15(b) ............................................................... 

14 

Miscellaneous: 

H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt. 2 (1990) ........ 

14 

136 Cong. Rec. 17,377 (1990) ........................................... 
6, 13, 16 

56 Fed. Reg. (1991): 

p. 35,726 ................................................................................... 

2, 9 

p. 35,745 ................................................................................... 
15 

2A Norman J. Singer, Statutes and Statutory Con- 
struction (6th ed. 2000) ......................................................... 12 

In the Supreme Court of the United States 

No. 00-1406 

CHEVRON U.S.A., INC., PETITIONER 

v. 

MARIO ECHAZABAL 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE 

This brief is submitted in response to the Court’s 
order inviting the Solicitor General to express the 
views of the United States. 

STATEMENT 

1. Title I of the Americans with Disabilities Act of 
1990 (ADA), 42 U.S.C. 12101 et seq., prohibits an em- 
ployer from discriminating against a “qualified individ- 
ual with a disability.” 42 U.S.C. 12112(a). A “qualified 
individual with a disability” is a disabled individual 
“who, with or without reasonable accommodation, can 
perform the essential functions of the employment 
position.” 42 U.S.C. 12111(8). The ADA defines “dis- 
criminate” to include “using qualification standards, 
employment tests or other selection criteria that screen 

(1) 

2 

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 job-related for the 
position in question and is consistent with business 
necessity.” 42 U.S.C. 12112(b)(6). 

A section entitled “Defenses” clarifies that “[i]t may 
be a defense to a charge of discrimination under [the 
ADA] that an alleged application of qualification stan- 
dards, 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.” 42 U.S.C. 12113(a). That section spe- 
cifically provides that the “term ‘qualification stan- 
dards’ 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). 
The ADA defines “direct threat” as “a significant risk 
to the health or safety of others that cannot be 
eliminated by reasonable accommodation.” 42 U.S.C. 
12111(3). 

The ADA requires the Equal Employment Opportu- 
nity Commission (EEOC) to issue regulations to carry 
out the provisions of Title I, 42 U.S.C. 12116, and the 
EEOC, following public notice and comment, has issued 
regulations pursuant to that mandate, 56 Fed. Reg. 
35,726 (1991). Consistent with the statutory text, the 
regulations provide that an employer may defend 
against a charge that a qualification standard improp- 
erly screens out disabled individuals by showing that 
the standard is “job-related and consistent with busi- 
ness necessity, and such performance cannot be accom- 
plished with reasonable accommodation.” 29 C.F.R. 

3 

1630.15(b)(1). In elaborating on that defense, the 
regulations state that “[t]he term ‘qualification stan- 
dard’ may include a requirement that an individual shall 
not pose a direct threat to the health or safety of the 
individual or others in the workplace.” 29 C.F.R. 
1630.15(b)(2). Accordingly, the regulations define 
direct threat to mean “a significant risk of substantial 
harm to the health or safety of the individual or others 
that cannot be eliminated or reduced by reasonable 
accommodation.” 29 C.F.R. 1630.2(r). 

2. From 1972 until 1996, respondent Mario Echaza- 
bal worked at an oil refinery owned by petitioner 
Chevron U.S.A., Inc., as an employee of various main- 
tenance contractors. In 1992, respondent applied to 
work directly for petitioner in the refinery’s coker unit. 
Petitioner made respondent an offer of employment 
contingent upon his passing a physical examination. 
The examination revealed that respondent’s liver was 
releasing certain enzymes at a higher than normal level. 
Based on that examination, petitioner concluded that 
respondent’s liver might be damaged by exposure to 
the solvents and chemicals present in the coker unit. 
Petitioner therefore rescinded the job offer. Pet. App. 
2a. 

After learning of the enzyme test results, respondent 
consulted several doctors. He was eventually diag- 
nosed with asymptomatic, chronic active Hepatitis C, a 
viral infection of the liver. Pet. App. 3a, 35a. Respon- 
dent continued to work throughout the refinery (includ- 
ing in the coker unit) as an employee of petitioner’s 
maintenance contractor. Id. at 2a. 

In 1995, respondent again applied to petitioner for a 
position in the coker unit. Petitioner again made re- 
spondent an offer contingent on a physical examination. 
Pet. App. 3a. The examining physician concluded that 

4 

further exposure to hepatotoxic chemicals and solvents 
like those used in the coker unit would seriously en- 
danger respondent’s health and, in certain circum- 
stances, could be fatal. Id. at 38a; C.A. App. 81-82. 
Petitioner’s medical director agreed that respondent 
could not work in the coker unit without risk to his own 
health. Pet. App. 38a. Based on the doctors’ findings, 
petitioner refused to hire respondent. Id. at 3a. 
Petitioner also instructed its maintenance contractor to 
ensure that respondent was not exposed to solvents 
and chemicals; and, as a result, respondent could no 
longer work at the refinery. Ibid. 

3. a. Respondent then brought this action in state 
court alleging, among other things, that petitioner and 
its maintenance contractor had discriminated against 
him on the basis of a disability, in violation of the ADA. 
Pet. App. 3a. Petitioner removed the case to the 
United States District Court for the Central District of 
California. Id. at 33a. The district court granted sum- 
mary judgment in favor of petitioner on all of respon- 
dent’s claims. Id. at 32a-57a. On the ADA claim, the 
district court found that petitioner’s refusal to hire 
respondent was lawful because, as a result of respon- 
dent’s liver condition, his working in the refinery would 
have posed a direct threat to his health. Id. at 46a-52a. 
The district court stayed the proceedings against the 
maintenance contractor, and certified several issues for 
appeal, including the propriety of the grant of summary 
judgment on the ADA claim. Id. at 3a-4a.1 

1 In the district court, respondent presented medical evidence 
that the court described as “raising a genuine issue that despite 
elevated liver enzyme levels, [respondent]’s liver function was 
normal, and that the substances to which he would be exposed in 
the position [in the coker unit] posed no greater a danger to 
[respondent] than to other workers.” Pet. App. 48a. The district 

5 

b. The United States Court of Appeals for the Ninth 
Circuit reversed. Pet. App. 1a-18a. The court first held 
that the ADA does not provide an affirmative defense 
permitting an employer “to refuse to hire an applicant 
on the ground that the individual, while posing no 
threat to the health or safety of other individuals in the 
workplace, poses a direct threat to his own health or 
safety.” Id. at 5a. The court found the language of the 
ADA “dispositive” of that question. Id. at 6a. The 
court noted that the statutory language provides that 
an employer may impose, as a qualification standard, a 
“requirement that an individual shall not pose a direct 
threat to the health or safety of other individuals in the 
workplace.” Ibid. (quoting, in part, 42 U.S.C. 12113(b)). 
Relying on the maxim of statutory construction ex- 
pressio unius est exclusio alterius, the court reasoned 
that, “by specifying only threats to ‘other individuals in 
the workplace,’ the statute makes it clear that threats 
to other persons—including the disabled individual 
himself—are not included within the scope of the 
defense.” Id. at 6a-7a. The court also found support in 
the ADA’s definition of “direct threat” to mean “a 
significant risk to the health or safety of others that 
cannot be eliminated by reasonable accommodation.” 
Id. at 7a (quoting 42 U.S.C. 12111(3)). 

The court further concluded that the ADA’s legisla- 
tive history reinforces that the direct threat defense 
excludes threats to oneself. Pet. App. 7a. The court 
noted that the legislative history contains numerous 

court discounted that evidence, however, because the evaluations 
on which it was based were not performed until after the alleged 
discrimination. Ibid. The EEOC filed an amicus brief in the court 
of appeals in which the EEOC argued that the district court erred, 
but the court of appeals did not reach that issue, and it is not 
presented by the petition for a writ of certiorari. 

6 

references to “direct threat” in relation to others, but 
the term “direct threat” is never “accompanied by a 
reference to threats to the disabled person himself.” Id. 
at 7a-8a. The court also relied on a floor statement by 
Senator Kennedy that “employers may not deny a 
person an employment opportunity based on 
paternalistic concerns regarding the person’s health.” 
Id. at 8a (quoting 136 Cong. Rec. 17,377 (1990)). The 
court acknowledged that a discussion in a House of 
Representatives Committee Report supports the exis- 
tence of a defense based on a threat to the employee’s 
own health, but the court concluded that the discussion 
was “somewhat ambiguous” and “outweighed by the 
substantial evidence to the contrary” elsewhere in the 
legislative history. Id. at 9a n.6. 

In reaching its conclusion, the court invalidated the 
EEOC’s regulations providing that an employer may 
establish as a “ ‘qualification standard’ * * * a require- 
ment that an individual shall not pose a direct threat to 
the health or safety of the individual or others in the 
workplace.” 29 C.F.R. 1630.15(b)(2) (emphasis added); 
see also 29 C.F.R. 1630.2(r). The court analyzed the 
regulations under Chevron U.S.A. Inc. v. Natural 
Resources Defense Council, Inc., 467 U.S. 837, 842-843 
(1984), Pet. App. 11a-12a & n.8, but found them “con- 
trary” to the ADA’s text. In the court’s view, “the 
language of the direct threat defense plainly expresses 
Congress’s intent to include within the scope of [the] 
defense only threats to other individuals in the 
workplace.” Id. at 12a. 

The court acknowledged that its conclusion conflicts 
with the decision of the United States Court of Appeals 
for the Eleventh Circuit in Moses v. American Non- 
wovens, Inc., 97 F.3d 446, 447 (1996) (per curiam), cert. 
denied, 519 U.S. 1118 (1997). Pet. App. 6a. The court 

7 

also noted that its decision is inconsistent with dicta 
in three other circuit court decisions. Ibid. (citing 
LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832 
(11th Cir. 1998); EEOC v. Amego, Inc., 110 F.3d 135 
(1st Cir. 1997); Daugherty v. City of El Paso, 56 F.3d 
695 (5th Cir. 1995), cert. denied, 516 U.S. 1172 (1996)). 

The court of appeals next addressed petitioner’s con- 
tention that, “even if the direct threat provision does 
not provide it with a defense to its actions,” respondent, 
“because of the risk of damage to his liver, * * * is not 
‘otherwise qualified’ to perform the job at issue.” Pet. 
App. 14a. The court acknowledged that an individual 
who, because of his disability, is unable to perform the 
“essential functions of the employment position that 
such individual holds or desires” (42 U.S.C. 12111(8)) is 
not a “qualified individual” (42 U.S.C. 12112(a)) under 
the ADA and, therefore, is not protected by the statute. 
Pet. App. 14a. In this case, however, the court ex- 
plained, there is no evidence “that the risk [respondent] 
allegedly poses to his own health renders him unable to 
perform [the job] duties.” Id. at 17a. Rather, the 
evidence shows that respondent had successfully per- 
formed work in the coker unit for years. “Had [he] 
failed during that period to perform the essential 
functions of his work, we seriously doubt that [peti- 
tioner] would have twice extended him contingent 
offers to work at the coker unit.” Id. at 18a. The court 
concluded that whatever risk respondent’s “employ- 
ment might pose to his own health” in the future, it 
“does not affect the question whether he is a ‘qualified 
individual with [a] disability.’ ” Ibid. 

Judge Trott dissented, calling the majority’s decision 
a “Pickwickian ruling” that “leads to absurd results.” 
Pet. App. 23a. Judge Trott both disagreed with the 
majority’s conclusion that respondent is a “qualified 

8 

individual” and noted that “[petitioner] has a defense to 
this action, known as the ‘direct threat’ defense.” Id. at 
22a. He stressed that the “EEOC’s implementing 
regulations, authorized by Congress, define[] a ‘direct 
threat’ to mean ‘a significant risk of substantial harm to 
the health or safety of the individual * * * that cannot 
be reduced by reasonable accommodation.’ ” 

Ibid. 
(quoting 29 C.F.R. 1630.2(r)). Judge Trott would have 
deferred to the EEOC’s regulations because “the 
EEOC has rationally and humanely spoken.” Ibid. 

DISCUSSION 

This Court should grant the petition for a writ of 
certiorari. The court of appeals incorrectly held that 
the ADA forecloses the affirmative defense that a 
disabled individual’s performance of the job would pose 
a significant risk of substantial harm to his own health 
or safety. In so doing, the court erroneously invali- 
dated EEOC regulations that recognize that defense 
and created a conflict with the decision of the Eleventh 
Circuit in Moses v. American Nonwovens, Inc., 97 F.3d 
446 (1996) (per curiam), cert. denied, 519 U.S. 1118 
(1997). The issue is an important one, and its resolution 
by this Court is warranted. 

I. THE COURT OF APPEALS ERRED IN INVALI- 
DATING THE EEOC’S REGULATIONS 

A. The EEOC’s Threat-To-Self Regulations Are Con- 
sistent With The Text Of The ADA 

Title I of the ADA prohibits an employer from “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 

9 

shown to be job-related for the position in question and 
is consistent with business necessity.” 42 U.S.C. 
12112(b)(6) (emphasis added). The statute clarifies that 
“[i]t may be a defense to a charge of discrimination” if a 
challenged qualification standard or criterion “has been 
shown to be job-related and consistent with business 
necessity, and such performance cannot be accom- 
plished by reasonable accommodation.” 42 U.S.C. 
12113(a). The ADA specifies that the “term ‘qualifica- 
tion 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) (emphasis added), and defines “direct threat” 
in parallel terms, see 42 U.S.C. 12111(3). 

The EEOC has interpreted those provisions to per- 
mit an employer to impose a qualification standard that 
screens out not only individuals who pose a direct 
threat to the health or safety of other individuals in the 
workplace but also individuals who pose such a threat 
to their own health or safety. Specifically, the EEOC 
has issued a regulation that provides that “[t]he term 
‘qualification standard’ may include a requirement that 
an individual shall not pose a direct threat to the health 
or safety of the individual or others in the workplace.” 
29 C.F.R. 1630.15(b)(2) (emphasis added). Another 
EEOC regulation defines “direct threat” as a “signifi- 
cant risk of substantial harm to the health or safety of 
the individual or others that cannot be eliminated or 
reduced by reasonable accommodation.” 29 C.F.R. 
1630.2(r) (emphasis added). 

The EEOC promulgated those regulations through 
notice-and-comment rulemaking, see 56 Fed. Reg. 
35,726 (1991), pursuant to an express delegation of 
authority to promulgate regulations to “carry out” the 

10 

provisions of Title I of the ADA. 42 U.S.C. 12116. The 
EEOC’s regulatory interpretation is therefore entitled 
to deference in accordance with Chevron U.S.A. Inc. v. 
Natural Resources Defense Council, Inc., 467 U.S. 837, 
842-845 (1984). 
“[A]dministrative implementation of a particular 
statutory provision qualifies for Chevron deference 
when it appears that Congress delegated authority to 
the agency generally to make rules carrying the force of 
law, and that the agency interpretation claiming defer- 
ence was promulgated in the exercise of that author- 
ity.” United States v. Mead Corp., 121 S. Ct. 2164, 2171 
(2001). It is “fair to assume” that “Congress contem- 
plates administrative action with the effect of law when 
it provides for a relatively formal administrative proce- 
dure,” such as the notice-and-comment rulemaking that 
the EEOC undertook in this case. Id. at 2172-2173. 
Compare Sutton v. United Air Lines, Inc., 527 U.S. 471, 
479 (1999) (reserving the question whether the EEOC’s 
regulation interpreting the term “disability” is entitled 
to Chevron deference because that term is defined in 
statutory provisions over which the EEOC has not 
been delegated rulemaking authority). 

Because the EEOC’s regulations interpret provisions 
over which the ADA expressly grants the EEOC 
rulemaking authority, the court of appeals was “obliged 
to accept the [EEOC]’s position if Congress has not 
previously spoken to the point at issue and the 
[EEOC]’s interpretation is reasonable.” Mead, 121 S. 
Ct. at 2172 (citing Chevron, 467 U.S. at 842-845). The 
court, however, concluded that the EEOC’s position is 
contrary to the clear intent of Congress. That con- 
clusion was incorrect. 

The ADA sets forth a general defense for “quali- 
fication standards” or “other selection criteria” that are 

11 

“job-related and consistent with business necessity.” 
42 U.S.C. 12113(a); see also 42 U.S.C. 12112(b)(6) (ex- 
cluding such standards and criteria from the definition 
of discrimination). The statute specifies that such 
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). It does not state that this requirement 
is the only permissible qualification standard concern- 
ing workplace threats to health or safety. To the 
contrary, it provides a general defense for job-related 
qualification standards and selection criteria that are 
consistent with business necessity, and it employs 
words of inclusion (“may include”) when specifying a 
threat to others as an example of a permissible quali- 
fication standard. Nothing in the ADA forecloses a 
qualification standard or selection criterion that 
requires that an individual not pose a threat to his own 
health or safety. Under those circumstances, Congress 
has not “directly spoken to the precise question” 
whether an employer may require as a qualification 
standard that a prospective employee be able to 
perform the job he seeks without posing a threat to his 
own health or safety. Chevron, 467 U.S. at 842. 

B. The Court Of Appeals’ Reliance On The Expressio 

Unius Canon Was Erroneous 

The court of appeals reached a contrary conclusion 
because of its mistaken reliance on the canon of statu- 
tory construction expressio unius est exclusio alterius. 
The court reasoned that the statutory specification of a 
“direct threat” defense for the risk of harm to others 
implicitly precludes a direct threat defense for the risk 
of harm to self. See Pet. App. 6a-7a. 

12 

That reasoning is flawed. The court of appeals’ reli- 
ance on the expressio unius principle was inappropriate 
because the relevant statutory language is expressly 
inclusive. As noted above, the threat-to-others defense 
is included in the section of the ADA that sets forth a 
more general defense for qualifications standards that 
are “job-related and consistent with business neces- 
sity.” 42 U.S.C. 12113(a). The statutory language 
specifies one example of that defense—“ ‘qualification 
standards’ may include a requirement that an indivi- 
dual shall not pose a direct threat to the health or 
safety of other individuals in the workplace.” 42 U.S.C. 
12113(b) (emphasis added). The use of the term “in- 
clude” indicates that what follows is illustrative rather 
than exclusive. See Federal Land Bank v. Bismarck 
Lumber Co., 314 U.S. 95, 100 (1941) (explaining that 
“the term ‘including’ is not one of all-embracing defini- 
tion, but connotes simply an illustrative application of 
the general principle”); 2A Norman J. Singer, Statutes 
and Statutory Construction § 47.07, at 231 (6th ed. 
2000); see, e.g., Pfizer Inc. v. Government of India, 434 
U.S. 308, 312 n.9 (1978); United States v. New York Tel. 
Co., 434 U.S. 159, 169 (1977).2 

This Court has frequently cautioned against that kind 
of uncritical reliance on the expressio unius principle. 
See Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 
703 (1991); Burns v. United States, 501 U.S. 129, 136 

2 The ADA’s definition of “direct threat” to mean “a significant 
risk to the health or safety of others,” 42 U.S.C. 12111(3), does not 
preclude the EEOC from using that term to describe another, 
similar example of the business necessity defense—a requirement 
that an employee’s performance of the job not pose a significant 
risk to the health or safety of the employee himself. The statutory 
definition of “direct threat” simply defines that term as it is used in 
the statute. 

13 

(1991); Ford v. United States, 273 U.S. 593, 612 (1927). 
Moreover, courts have noted that the canon is “an 
especially feeble helper in an administrative setting, 
where Congress is presumed to have left to reasonable 
agency discretion questions that it has not directly 
resolved.” Cheney R.R. v. ICC, 902 F.2d 66, 69 (D.C. 
Cir.), cert. denied, 498 U.S. 985 (1990). Because it relies 
on an inference rather than a direct statement, the 
canon “can rarely if ever be the ‘direct[]’ congressional 
answer required by Chevron.” Ibid. See also Martini 

v. Federal Nat’l Mortgage Ass’n, 178 F.3d 1336, 1343 
(D.C. Cir. 1999) (expressio unius maxim “is simply too 
thin a reed to support the conclusion that Congress has 
clearly resolved [the] issue”), cert. dismissed, 528 U.S. 
1147 (2000). 

The legislative history of the ADA likewise does not 
indicate an intent to limit the business necessity 
defense to health and safety threats to others in the 
workplace. The Ninth Circuit concluded otherwise 
because, when the term “direct threat” was used in the 
“various committee reports” and “floor debate,” there 
was no explicit reference to “threats to the disabled 
person himself.” Pet. App. 7a-8a. That reasoning 
applies to the legislative history the same erroneous 
expressio unius analysis that the court of appeals 
applied to the statutory language. As discussed above, 
that principle is not applicable here. Indeed, it is 
particularly inappropriate to apply the expressio unius 
canon to the legislative history, since “the language of a 
statute * * * is not to be regarded as modified by 
examples set forth in the legislative history.” Pension 
Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 649 
(1990). Further, although the legislative history rele- 
vant to the threat-to-self defense is mixed, see 136 
Cong. Rec. 17,377 (1990) (Sen. Kennedy), there is, as 

14 

the court of appeals acknowledged (Pet. App. 9a n.6), 
legislative history that supports its recognition, H.R. 
Rep. No. 485, 101st Cong., 2d Sess. Pt. 2, at 73-74 
(1990). 

C. The EEOC’s Threat-To-Self Regulations Are A 

Reasonable Interpretation Of The ADA 

The EEOC’s regulations reflect a reasonable inter- 
pretation of the ADA entitled to Chevron deference. 
Although the “direct threat” provision of the ADA does 
not itself provide a defense when the employee’s job 
performance poses a threat to the employee himself, 
the EEOC reasonably concluded that the general 
business necessity defense is broad enough to include a 
threat-to-self defense. See 29 C.F.R. Pt. 1630 App. 
§ 1630.15(b) (noting that employers with qualification 
standards based upon safety must satisfy the direct 
threat standard “in order to show that the requirement 
is job-related and consistent with business necessity”). 

As noted above, the ADA provides a general defense 
for qualification standards or other selection criteria 
that are job-related and consistent with business neces- 
sity. The “direct threat” provision is illustrative of that 
general defense and does not exclude other potential 
applications. A qualification standard that screens out 
disabled individuals who pose a threat to their own 
health or safety fits comfortably within the general 
defense. Like the congressionally-specified defense for 
standards that screen out those who pose a threat to 
the health or safety of others, it is job-related and 
consistent with business necessity. 

When there is a high probability that an employee 
will suffer serious injury or death in the near future 
because of his performance of the job, there is a 
significant risk that the employee will not be able to 

15 

perform the essential functions of the job on an on- 
going basis. If the employee becomes unable to 
perform the job, the employer will likely incur con- 
siderable costs due to interruption of business opera- 
tions and the need to find a replacement. Furthermore, 
serious injuries and deaths pose the potential for unique 
disruptions in the workplace and unique costs to 
employers. 

In addition, as the EEOC noted when it promulgated 
its regulations, 56 Fed. Reg. at 35,745, including harm 
to the disabled individual within the general business 
necessity defense is consistent with judicial precedent 
under the Rehabilitation Act of 1973, 29 U.S.C. 791-794 
(1994 & Supp. V 1999), as well as the EEOC’s regula- 
tions interpreting that provision. See Pet. 18-20 (col- 
lecting cases and also citing EEOC regulations); Pet. 
App. 16a n.10 (citing Mantolete v. Bolger, 767 F.2d 
1416, 1422-1424, amended by 38 Fair Empl. Prac. Cas. 
(BNA) 1517 (9th Cir. 1985)). Because the ADA is 
modeled on the Rehabilitation Act, it was reasonable 
for the EEOC to incorporate prior practice under the 
Rehabilitation Act into its ADA regulations. See 
Bragdon v. Abbott, 524 U.S. 624, 631-632, 645 (1998); see 
also 42 U.S.C. 12201 (incorporating Rehabilitation Act 
standards into the ADA “[e]xcept as otherwise 
provided”). 

Finally, at the same time that the EEOC’s approach 
accommodates legitimate business concerns, it also 
protects disabled employees from “over-protective 
rules and policies” (42 U.S.C. 12101(a)(5)) based on 
“stereotypic assumptions” (42 U.S.C. 12101(a)(7)). 
Under the threat-to-self regulations adopted by the 
EEOC, employers do not (as the court of appeals 
feared) have license to “deny a person an employment 
opportunity based on paternalistic concerns regarding 

16 

the person’s health.” Pet. App. 8a (quoting 136 Cong. 
Rec. at 17,377 (Sen. Kennedy)). The EEOC’s regula- 
tions apply to the threat-to-self defense the demanding 
direct threat standard that applies to the threat-to- 
others defense. That standard protects against abuse 
of the defense by requiring the employer to prove 
“significant risk of substantial harm to the health or 
safety of the individual or others,” based “on an 
individualized assessment of the individual’s present 
ability to safely perform the essential functions of the 
job.” 29 C.F.R. 1630.2(r). In addition, by analyzing 
employer concerns about threat to self as a defense 
(rather than part of the employee’s prima facie demon- 
stration that he or she is “qualified” under 42 U.S.C. 
12112(a)), the regulations appropriately place the 
burden of proof on employers. The EEOC’s regulations 
are thus eminently reasonable, and the court of appeals 
erred in invalidating them. 

II. THE COURT OF APPEALS’ DECISION WARRANTS 
THIS COURT’S REVIEW 

This Court should grant the petition for a writ of cer- 
tiorari and reverse the erroneous decision of the Ninth 
Circuit. That decision has created a conflict among the 
courts of appeals. As the Ninth Circuit acknowledged, 
Pet. App. 6a, its decision cannot be reconciled with the 
decision of the Eleventh Circuit in Moses v. American 
Nonwovens, Inc., 97 F.3d 446 (1996) (per curiam), cert. 
denied, 519 U.S. 1118 (1997). In Moses, the court of 
appeals held that an employer did not violate the ADA 
by terminating an employee with epilepsy because the 
risks to “his own health or safety” satisfied the “direct 
threat” defense. Id. at 447. Citing both the general 
business necessity and direct threat subsections of the 
ADA, the court stated: “An employer may fire a dis- 

17 

abled employee if the disability renders the employee a 
‘direct threat’ to his own health or safety.” Ibid. 
Although the Eleventh Circuit did not explicitly 
address the validity of the EEOC’s regulations, the 
court cited one of those regulations with approval. See 
ibid. (citing 29 C.F.R. 1630.2(r)).3 

This Court’s review is also warranted because the 
Ninth Circuit’s decision invalidates the EEOC’s regula- 
tions. As a result, employers who operate nationwide 
must modify their employment practices in the Ninth 
Circuit even though they follow EEOC regulations in 
other parts of the country. For the EEOC, the Ninth 
Circuit’s ruling means that different field offices will 
process discrimination complaints under different legal 
standards. Offices outside the Ninth Circuit will apply 
the threat-to-self regulations; offices that serve areas 
entirely within the Ninth Circuit will not, and offices 
that serve areas both inside and outside the Ninth 
Circuit will need to apply different standards in differ- 
ent cases. The ADA’s anti-discrimination provisions 
should not apply in this haphazard fashion; clear and 
consistent standards should govern nationwide. 

3 The Ninth Circuit’s holding in this case is also inconsistent 
with statements in decisions of other courts of appeals that assume 
the existence of a threat-to-self defense. See Pet. App. 6a (citing 
cases); see also Borgialli v. Thunder Basin Coal Co., 235 F.3d 
1284, 1291 (10th Cir. 2000) (citing with approval EEOC’s regula- 
tions). Moreover, although the Ninth Circuit correctly held that 
respondent is a “qualified individual” under 42 U.S.C. 12112(a), 
that aspect of the court’s decision is in tension with the Seventh 
Circuit’s decision in Koshinski v. Decatur Foundry, Inc., 177 F.3d 
599 (1999). In that case, the Seventh Circuit held that the plaintiff 
was not qualified because “there was no way to do the job [that he 
had previously held] without subjecting himself to the very things 
his doctors recommended he stay away from.” Id. at 603. 

18 

Finally, the issue of threat to self arises with suffi- 
cient frequency that it merits this Court’s attention. In 
addition to the cases involving private employers noted 
in the petition, the federal government has encountered 
numerous cases involving threats to the health or 
safety of applicants or employees. In McClaren v. 
Dalton, Appeal No. 01960820, 1997 WL 774840, at *3 
(EEOC Dec. 5, 1997), for instance, the EEOC ruled that 
the Department of the Navy lawfully precluded an em- 
ployee with multiple sclerosis from working aboard 
ships because the work would have posed a direct 
threat of substantial harm to the employee’s health and 
safety. In another case, the EEOC sustained the Postal 
Service’s refusal to allow an employee to continue his 
previous work as a window clerk because that con- 
tinued employment would have posed a threat to his 
health and possibly required amputation of his foot. 
Haug v. Runyon, Appeal No. 01951337, 1998 WL 25247, 
at *8 (EEOC Jan. 9, 1998). See also Burkett v. United 
States Postal Serv., 175 F.R.D. 220 (N.D. W.Va. 1997); 
Merrell v. Pirie, Appeal No. 01971565, 2001 WL 237043, 
at *4 (EEOC Mar. 2, 2001); Patterson v. Summers, 
Appeal No. 01964964, 2000 WL 366113 (EEOC Apr. 3, 
2000); Stallings v. Summers, Appeal No. 01964963, 2000 
WL 366114 (EEOC Apr. 3, 2000); Cobb v. Summers, 
Appeal No. 01965074, 2000 WL 366115 (EEOC Apr. 3, 
2000). 

19 

CONCLUSION 

For the foregoing reasons, the petition for a writ of 
certiorari should be granted. 

Respectfully submitted. 

NICHOLAS M. INZEO 

Acting Deputy General 

Counsel 

PHILIP B. SKLOVER 

Associate General Counsel 

CAROLYN L. WHEELER 

Assistant General Counsel 

ROBERT J. GREGORY 
Senior Attorney 
Equal Employment 

Opportunity Commission 
THEODORE B. OLSON 
Solicitor General 

ROBERT D. MCCALLUM, JR. 

Assistant Attorney General 

PAUL D. CLEMENT 

Deputy Solicitor General 

MATTHEW D. ROBERTS 

Assistant to the Solicitor 

General 

MARLEIGH D. DOVER 
MATTHEW M. COLLETTE 

Attorneys 

SEPTEMBER 2001