No. 00-1406 

In the Supreme Court of the United States 

CHEVRON U.S.A. INC., PETITIONER 

v. 

MARIO ECHAZABAL 

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

BRIEF FOR THE UNITED STATES AND 
THE EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION AS AMICI CURIAE 
SUPPORTING PETITIONER 

NICHOLAS M. INZENO 

Acting Deputy General 

Counsel 
PHILLIP B. SKLOVER 

Associate General Counsel 
CAROLYN L. WHEELER 

Assistant General Counsel 
ROBERT J. GREGORY 

Senior Trial Attorney 
Equal Employment 

Opportunity Commission 
Washington, D.C. 20410 
THEODORE B. OLSON 
Solicitor General 

Counsel of Record 
PAUL D. CLEMENT 

Deputy Solicitor General 
ROBERT D. MCCALLUM, JR. 

Assistant Attorney General 
LISA SCHIAVO BLATT 

Assistant to the Solicitor 

General 
MARLEIGH D.DOVER 
MATTHEW 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 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 

6 

Argument: 

I. The EEOC’s regulatory threat-to-self defense is a 

valid interpretation of the ADA .................................... 

8 

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

entitled to Chevron deference ................................ 

8 

B. The ADA’s text and structure do not foreclose 

a threat-to-self defense ............................................ 
11 

C. The ADA’s legislative history likewise does 

not foreclose a threat-to-self defense .................... 

14 

D. The EEOCs threat-to-self regulations reflect a 

reasonable interpretation of the ADA .................. 
16 

1. A qualification standard that ensures that 
an individual’s job performance will not 

directly threaten the individual’s health and 
safety is job-related and consistent with 
business necessity ............................................... 

16 

2. The EEOC reasonably modeled its regula- 
tions on the Rehabilitation Act of 1973 ........... 
19 

3. The regulations do not foster paternalistic 

employment practices ......................................... 

20 

II. Respondent is a “qualified individual” under the 

ADA .................................................................................... 24 

A. Respondent established that he was a qualified 

individual .................................................................... 24 

(III) 

IV 

Table of Contents—Continued: 

Page 

B. The EEOC’s regulations properly place on the 

employer the burden of showing that an 
employee would pose a direct threat to the 
health and safety of himself or others ................... 
25 

Conclusion ....................................................................................... 30 

TABLE OF AUTHORITIES 

Cases: 

Albertson’s, Inc. v. Kirkingbury, 527 U.S. 555 
(1999) .................................................................................... 
26, 27 

Bentivegna v. United States Dep’t of Labor, 694 

F.2d 619 (9th Cir. 1982) ................................................ 

7, 20, 28 

Bragdon v. Abbott, 524 U.S. 624 (1998) ................... 
20, 22, 28 

Burns v. United States, 501 U.S. 593 (1991) ...................... 
13 

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 
(1994) ........................................................................................ 19 

Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir.............. 

1993) ......................................................................................... 28 

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) ......................... 

7, 10, 11, 16 

Chiari v. City of League City, 920 F.2d 311 (5th Cir. 
1991) ......................................................................................... 28 

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .................. 

15 

Dothard v. Rawlinson, 433 U.S. 321 (1977) ...................... 
16 

Dunn v. Commodity Futures Trading Comm’n, 
519 U.S. 465 (1997) ................................................................ 
25 

EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276 
(7th Cir. 1995) ......................................................................... 
18 

Federal Land Bank v. Bismarck Lumber Co., 
314 U.S. 95 (1941) ................................................................... 
12 

Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th 

Cir. 1993) ................................................................................. 16 

V 

Cases—Continued: Page 

Ford v. United States, 273 U.S. 593 (1927) ....................... 
13 

International Union v. Johnson Controls, Inc., 
499 U.S. 187 (1991) ....................................................... 
18, 22, 23 

Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 
1985) ................................................................................. 
7, 20, 28 

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

F.3d 1336 (D.C. Cir. 1999), cert. dismissed, 528 
U.S. 1147 (2000) ...................................................................... 

13 
Morton v. United Parcel Serv., Inc., No. 99-17447, 
2001 WL 151810b (9th Cir. Nov. 30, 2001) ........................ 
13 

New York City Transit Auth. v. Beazer, 440 

U.S. 568 (1979) ........................................................................ 

16 

Pauley v. Bethenergy Mines, Inc., 501 U.S. 680 
(1991) ........................................................................................ 13 

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

U.S. 633 (1990) ........................................................................ 
15 

Pfizer, Inc. v. Government of India, 434 U.S. 308 
(1978) ........................................................................................ 12 

School Bd. of Nassau County v. Arline, 480 U.S. 273 
(1987) .................................................................................... 

21, 28 

Smith v. City of Des Moines, 99 F.3d 1466 (8th 

Cir. 1996) ................................................................................. 

16 

Sutton v. United Air Lines, Inc., 527 U.S. 471 
(1999) ........................................................................................ 10 

United States v. Mead Corp., 121 S. Ct. 2164 
(2001) ........................................................................................ 10 

United States v. New York Tel. Co., 434 U.S. 159 
(1977) ........................................................................................ `12 

Webner v. Titan Distribution, Inc., 267 F.3d 828 
(8th Cir. 2001) ......................................................................... 

24 

Statutes and regulations: 

Americans with Disabilities Act of 1990, 42 U.S.C. 
12101 ........................................................................................ 20 

42 U.S.C. 12101(a)(5) ....................................................... 21 

VI 

Statutes and regulations—Continued: 
Page 

42 U.S.C. 12101(a)(7) ....................................................... 
21 

Tit. I, 42 U.S.C. 12111 .................................. 
1, 2, 3, 8, 9, 20, 24 

42 U.S.C. 12111(3) ............................................... 
3, 9, 12, 18 

42 U.S.C. 12111(8) ................................................. 
2, 6, 8, 24 

42 U.S.C. 12112(a) .................................................. 
2, 6, 8, 24 

42 U.S.C. 12112(b)(6) ............................. 
2, 7, 8, 9, 11, 13, 25 

42 U.S.C. 12113 ................................................................. 
25 

42 U.S.C. 12113(a) ............................ 
2, 7, 8, 9, 11, 12, 13, 27 

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

2-3, 5, 7, 9, 11, 12, 13, 18, 25, 27 

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

9 

Tit. III, 42 U.S.C. 12181 ................................................... 
22, 23 

42 U.S.C. 12182(b)(3) ....................................................... 
23 

Tit. V, 42 U.S.C. 12201 .......................................................... 
20 

Occupational Safety and Health Act of 1970, 
29 U.S.C. 654(a)(1) ................................................................. 
19 

Rehabilitation Act of 1973, 29 U.S.C. 791 et seq. ................. 
19 

29 U.S.C. 791 (§ 501) .................................................... 
19, 20, 29 

29 U.S.C. 791(g) ...................................................................... 
20 

29 U.S.C. 793(a) ...................................................................... 
19 

29 U.S.C. 794 (§ 504) .............................................................. 
20 

29 U.S.C. 794(a) ...................................................................... 
19 

42 U.S.C. 2000e-2(k) ................................................................. 
16 

28 C.F.R. 36.208(b) ................................................................... 
23 

29 C.F.R.: 

Section 1613.702(f) (1979) .............................................. 

7, 20 

Section 1630.2(n)(1) ........................................................... 
24 

Section 1630.2(q) ............................................................... 
2 

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

Section 1630.15(b)(1) ......................................................... 
3 

Section 1630.15(b)(2) ................................................. 
1, 3, 5, 9 

Pt. 1630, App.: 

Section 1630.2(m) .............................................................. 

24 

Section 1630.2(n) ............................................................... 
26 

Section 1630.2(r) ................................................... 8, 9, 21, 22 

VII 

Regulations—Continued: Page 

Section 1630.15(a) .............................................................. 
21 

Section 1630.15(b) ............................................................. 
27 

Section 1630.15(c) .............................................................. 
27 

Miscellaneous: 

136 Cong. Rec. (daily ed. July 13, 1990): 

p. S9684-03 .............................................................................. 

15 

p. S9697 ............................................................................... 
15, 21 

43 Fed. Reg. 12,295 (1978) ....................................................... 
20 

56 Fed. Reg. (1991): 

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

3, 9, 19 

p. 35,730 ................................................................................... 
19 

65 Fed. Reg. 11,019 (2000) ....................................................... 
20 

Federal Sector Equal Employment Law and Practice 
(2001) ........................................................................................ 28 

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

Pt. 2 ............................................................................... 
10, 13, 14, 

22, 24, 28, 29 
Pt. 3 ..................................................................................... 

26, 28 

Haig Neville, 40 Industrial Management, Workplace 
accidents: they cost more than you think (Jan.-Feb. 
1998) ......................................................................................... 17 

Valerie Overheul, 70 Occupational Health and Safety, 
20 Years of Safety (June 2001) ............................................ 

17 

S. Rep. No. 116, 101st Cong., 1st Sess. (1989) ................. 
10, 13, 

21, 24, 28 

2A Norman J. Singer, Statutes and Statutory Con- 
struction (6th ed. 2000) ......................................................... 
12 
David W. Wilbanks, 63 Occupational Hazards, Common 

Safety Myths (Oct. 2001) ...................................................... 17 

In the Supreme Court of the United States 

No. 00-1406 

CHEVRON U.S.A. INC., PETITIONER 

v. 

MARIO ECHAZABAL 

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

BRIEF FOR THE UNITED STATES AND 
THE EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION AS AMICI CURIAE 
SUPPORTING PETITIONER 

INTEREST OF THE UNITED STATES 

The Equal Employment Opportunity Commission 
(EEOC) enforces Title I of the Americans with Disabilities 
Act of 1990 (ADA), 42 U.S.C. 12111 et seq., with respect to 
private employers and is authorized to issue regulations 
under that Title. This case concerns whether Title I author- 
izes an affirmative defense for cases in which an individual 
will pose a direct threat to the health or safety of that indivi- 
dual. The court of appeals in this case invalidated the EEOC 
regulations that recognize such a defense. 29 C.F.R. 
1630.2(r), 1630.15(b)(2). The EEOC is, of course, interested 
in the validity of its regulations. The United States filed an 
amicus curiae brief in this case at the petition stage in 
response to the Court’s order inviting the Solicitor General 
to express the views of the United States. 

(1) 

2 

STATEMENT 

1. Title I of the ADA prohibits an employer from dis- 
criminating against a “qualified individual 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 
“discriminate” to include “using qualification standards, em- 
ployment 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 job-related for the position in question and is 
consistent with business necessity.” 42 U.S.C. 12112(b)(6).1 
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 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.” 42 U.S.C. 
12113(a). That section specifically provides that 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.” 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 elimi- 

1 The EEOC’s Title I regulations define “[q]ualification standards” to 
mean “the personal and professional attributes including the skill, experi- 
ence, education, physical, medical, safety and other requirements estab- 
lished by a covered entity as requirements which an individual must meet 
in order to be eligible for the position held or desired.” 29 C.F.R. 
1630.2(q). 

3 

nated or reduced by reasonable accommodation.” 42 U.S.C. 
12111(3). 

The ADA requires the EEOC to issue regulations to carry 
out the provisions of Title I, 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 a disabled individual by showing that the 
standard is “job-related and consistent with business neces- 
sity, and such performance cannot be accomplished with rea- 
sonable accommodation.” 29 C.F.R. 1630.15(b)(1). In elabo- 
rating on that defense, the regulations state 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). 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. Respondent Mario Echazabal first began working at 
an oil refinery owned by petitioner Chevron U.S.A., Inc. in 
1972. Employed by various maintenance contractors, 
respondent worked continuously for petitioner as a laborer, 
helper, pipefitter, and as a worker on the fire watch (exclud- 
ing one period between December 1975 and January 1979, 
when he was not working at the refinery). Respondent 
worked primarily in the refinery’s coker unit. Pet. App. 2a. 

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. An examination by petitioner’s physician re- 
vealed that respondent’s liver was releasing certain enzymes 
at a higher than normal level. Based on that examination, 

4 

petitioner concluded that respondent’s liver might be dam- 
aged 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 con- 
sulted several doctors. He was eventually diagnosed with 
asymptomatic, chronic active Hepatitis C, a viral infection of 
the liver. Pet. App. 3a, 35a. Respondent continued to work 
throughout the refinery (including 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 as a plant helper in the coker unit. Petitioner again 
made respondent an offer contingent on a physical examina- 
tion. Pet. App. 3a, 35a. Petitioner’s examining physician 
concluded that further exposure to chemicals and solvents 
like those used in the coker unit would seriously endanger 
respondent’s health and, in certain circumstances, could be 
fatal. Id. at 38a; C.A. E.R. 81-82. Petitioner’s medical direc- 
tor agreed that respondent could not work in the coker unit 
without risk to his own health. Pet. App. 38a. Based on the 
those 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 brought this action in state court 
alleging, among other things, that petitioner and its main- 
tenance 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 32a. The 
district court granted summary judgment in favor of peti- 
tioner on all of respondent’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- 

5 

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 main- 
tenance contractor, and certified several issues for appeal, 
including the propriety of the grant of summary judgment on 
the ADA claim. Id. at 3a-4a. 

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 ques- 
tion. 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 42 U.S.C. 12113(b)). Relying 
on the maxim of statutory construction expressio unius est 
exclusio alterius, the court reasoned that, “by specifying 
only threats to ‘other individuals in the workplace,’ the stat- 
ute 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 accordingly 
invalidated the EEOC’s regulations recognizing a threat-to- 
self defense. 29 C.F.R. 1630.2(r), 1630.15(b)(2).2 

2 Because the Ninth Circuit invalidated the EEOC’s regulations, the 
court of appeals did not address the EEOC’s argument, set forth in a brief 
as amicus curiae, that the district court erred in granting petitioner sum- 
mary judgment on the direct threat defense. The EEOC urged that “a 
reasonable jury could find that [petitioner] failed to consider the current 
medical knowledge and the best available objective evidence on 
[respondent’s] condition, erred in concluding that [respondent] would have 
posed a direct threat, and ultimately failed to base its direct threat deter- 

6 

The court of appeals also addressed petitioner’s conten- 
tion that, “even if the direct threat provision does not pro- 
vide 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 
explained, 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. 

c. 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 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 Con- 
gress, defin[e] 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 accommoda- 
tion.’ ” Ibid. (quoting 29 C.F.R. 1630.2(r)). Judge Trott 
would have deferred to the EEOC’s implementing regula- 
tions because “the EEOC has rationally and humanely 
spoken.” Id. at 22a. 

SUMMARY OF ARGUMENT 

I. A. The court of appeals erred in invalidating the 
EEOC’s threat-to-self regulations. Those regulations were 

mination on a reasonable medical judgment.” EEOC C.A. Br. 9. That 
argument would remain available in the event of a remand. 

7 

issued pursuant to the ADA’s specific grant of rulemaking 
authority and are entitled to deference under Chevron 
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 
U.S. 837 (1984). Congress has not “directly spoken to the 
precise question” whether an employer may impose a quali- 
fication standard that requires an individual to be able to 
perform a job without posing a direct threat to his own 
health or safety. Id. at 842. The ADA permits an employer 
to establish a “qualification standard[]” that screens out dis- 
abled persons if the standard is “job-related and consistent 
with business necessity.” 42 U.S.C. 12112(b)(6), 12113(a). 
The Act further specifies that such a qualification standard 
may “include” a requirement that an individual not pose a 
direct threat to the health or safety of other individuals in 
the workplace. 42 U.S.C. 12113(b). Because the statutory 
text and structure plainly indicate that Congress established 
a threat-to-others qualification standard as only one example 
of a permissible qualification standard, the court of appeals 
erred in invalidating the EEOC’s recognition of a closely 
related threat-to-self defense. 

B. The EEOC’s regulations are reasonable. The EEOC’s 
recognition of a threat-to-self defense reflects an employer’s 
legitimate interest in requiring that an individual’s employ- 
ment not pose a significant risk of injury or death to the in- 
dividual. That requirement is both “job-related” and “con- 
sistent with business necessity.” 42 U.S.C. 12112(b)(6), 
12113(a). A threat-to-self defense also comports with judicial 
precedent under the Rehabilitation Act of 1973, and the 
EEOC’s regulations interpreting that Act. Mantolete v. 
Bolger, 767 F.2d 1416, 1421-1422 (9th Cir. 1985); Bentivegna 

v. United States Dep’t of Labor, 694 F.2d 619, 621-623 (9th 
Cir. 1982); 29 C.F.R. 1613.702(f ) (1979). At the same time, 
the EEOC’s regulations guard against paternalistic employ- 
ment decisions based on a generalized notion that individuals 
with certain disabilities pose a threat to self; the regulations 

8 

require the employer to prove a significant risk of imminent 
harm based on an individualized and objective assessment of 
the risk. 29 C.F.R. 1630.2(r); id. Pt. 1630, App. § 1630.2(r). 

II. Although the court of appeals erred in invalidating 
the EEOC’s regulations, it correctly determined that re- 
spondent is a “qualified individual” because respondent could 
“perform the essential functions of the employment position” 
that he sought. 42 U.S.C. 12111(8), 12112(a). Indeed, 
respondent successfully performed the duties of a plant 
helper for over 20 years as a contractor’s employee in peti- 
tioner’s coker unit. Once a plaintiff meets his burden of 
showing that he can perform the essential functions of a job, 
he does not bear the additional burden of showing that he 
would not pose a direct threat to the health and safety of 
himself or others. The Act clearly denotes valid qualifica- 
tions standards, in general, and the threat-to-others provi- 
sion, in particular, as “defenses” available to employers. 42 
U.S.C. 12112(b)(6), 12113(a). Employers naturally bear the 
burden in establishing those defenses. Because the regula- 
tory threat-to-self provision, like the statutory threat-to- 
others standard, is a defense, the EEOC has properly allo- 
cated the burden of proof to the employer. 

ARGUMENT 

I. THE EEOC’S REGULATORY THREAT-TO-SELF 
DEFENSE IS A VALID INTERPRETATION OF THE 
ADA 

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

to Chevron Deference 

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 

9 

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 neces- 
sity.” 42 U.S.C. 12112(b)(6) (emphasis added). The statute 
clarifies that “[i]t may be a defense to a charge of discrimina- 
tion” if a challenged qualification standard or criterion “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). The ADA 
specifies that 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,” 42 U.S.C. 12113(b), and defines “direct threat” in 
parallel terms, see 42 U.S.C. 12111(3). 

The EEOC has interpreted those provisions to permit 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 indi- 
viduals 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 “sig- 
nificant 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 provisions of Title I of the 
ADA. 42 U.S.C. 12116. In delegating that authority to the 

10 

EEOC, Congress contemplated that the EEOC’s regulations 
would “have the force and effect of law.” H.R. Rep. No. 485, 
101st Cong., 2d Sess. Pt. 2, at 82 (1990); S. Rep. No. 116, 
101st Cong., 1st Sess. 43 (1989) (same). The EEOC’s regula- 
tory 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). 

As this Court recently reaffirmed, “administrative imple- 
mentation 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 
deference 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 contemplates 
administrative action with the effect of law when it provides 
for a relatively formal administrative procedure,” such as the 
notice-and-comment rulemaking that the EEOC undertook 
in this case. Id. at 2172. Cf. Sutton v. United Air Lines, 
Inc., 527 U.S. 471, 479 (1999) (reserving the question 
whether the EEOC’s regulation interpreting the term “dis- 
ability” is entitled to Chevron deference because that term is 
defined in other provisions of the ADA over which the 
EEOC has not been delegated rulemaking authority). Be- 
cause the EEOC’s regulations here 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 rea- 
sonable.” Mead, 121 S. Ct. at 2172 (citing Chevron, 467 U.S. 
at 842-845). 

11 

B. The ADA’s Text and Structure Do Not Foreclose A 

Threat- To-Self Defense 

1. The ADA does not speak directly to the validity of a 
threat-to-self defense, but the Act’s text and structure sup- 
port, rather than foreclose, such a defense. The ADA sets 
forth a general defense for “qualification standards” or 
“other selection criteria” that are “job-related and consistent 
with business necessity.” 42 U.S.C. 12113(a); see 42 U.S.C. 
12112(b)(6) (excluding such a qualification standard and 
selection criteria from the definition of discrimination). The 
statute specifies that a qualification standard “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). The Act does not state 
that this requirement is the only permissible qualification 
standard concerning workplace threats to health or safety. 
To the contrary, Section 12113(a) provides a general defense 
for job-related qualification standards and selection criteria 
that are consistent with business necessity, and Section 
12113(b) employs words of inclusion (“may include”) when 
specifying a threat to others as an example of a permissible 
qualification standard. 

Nothing in Title I of the ADA forecloses a qualification 
standard or selection criterion that requires that an individ- 
ual not a pose a direct threat to his own health or safety. 
Rather, both the text and structure of the ADA leave ample 
room for the EEOC to issue regulations that define addi- 
tional qualification standards that are job-related and con- 
sistent with business necessity. 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 direct threat to his own health or 
safety. Chevron, 467 U.S. at 842. 

12 

2. The court of appeals reached a contrary conclusion 
because of its mistaken reliance on the canon of statutory 
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. 

That reasoning is flawed. The court of appeals’ reliance 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 
qualification standards that are “job-related and consistent 
with business necessity.” 42 U.S.C. 12113(a). The statutory 
language specifies one example of that defense—a permissi- 
ble qualification standard may “include” a requirement that 
an individual not directly threaten the health or safety of 
other individuals in the workplace. 42 U.S.C. 12113(b). The 
use of the term “include” 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).3 

3 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 perform- 
ance of the job not pose a significant risk to the health or safety of the 
employee himself. 29 C.F.R. 1630.2(r). The statutory definition of “direct 
threat” simply defines that term as it is used in the statute. 

13 

This Court has frequently cautioned against 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 (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).4 

4 The court of appeals’ reading of the statute also would lead to results 
that Congress could not have intended. The ADA’s direct threat defense 
refers to “other individuals in the workplace.” 42 U.S.C. 12113(b) (empha- 
sis added). Under the court of appeals’ holding, an employer could not 
defend a job-related qualification standard based on direct threats to third 
parties outside the workplace. Pet. App. 6a-7a; see also Morton v. United 
Parcel Serv., Inc., No. 99-17447, 2001 WL 1518106, at *7 (9th Cir. Nov. 30, 
2001) (direct threat defense does not apply where “asserted threat went 

* * * to the general public”). However, nothing indicates that Congress’s 
concern with health or safety risks posed by an individual’s job perfor- 
mance was limited to persons in the workplace. See S. Rep. No. 116, 
supra, at 27 (“It is also acceptable to deny employment to an applicant or 
to fire an employee with a disability on the basis that the individual poses 
a direct threat to the health or safety of others or poses a direct threat to 
property.”) (emphasis added); accord H.R. Rep. No. 485, supra, Pt. 2, at 56. 
Rather, Congress provided a general defense for any qualification stan- 
dard that is shown to be “job-related” and “consistent with business 
necessity.” 42 U.S.C. 12112(b)(6), 12113(a). 

14 

C. The ADA’s Legislative History Likewise Does Not 

Foreclose A Threat-To-Self Defense 

1. The ADA’s legislative history does not reveal a 
congressional intent to preclude the EEOC’s interpretation. 
As the court of appeals acknowledged (Pet. App. 9a), the 
House Report recognizes that an employer may require a 
candidate to “undergo[] a post-offer, pre-employment medi- 
cal examination.” H.R. Rep. No. 485, supra, Pt. 2, at 73. The 
Report elaborates that, although the employer may not 
exclude the candidate “solely on the basis of an abnormality 
on an x-ray,” “if the examining physician found that there 
was high probability of substantial harm if the candidate 
performed the particular functions of the job in question, the 
employer could reject the candidate, unless the employer 
could make a reasonable accommodation to the candidate’s 
condition that would avert such harm.” Ibid.; see also ibid. 
(recognizing physicians should examine “the effects of the 
disability on the individual being considered”) (emphasis 
added). Congress thus assumed that an employer, when 
determining whether to hire a disabled individual, could 
consider substantial job-related risks to the individual’s own 
health or safety. 

2. In invalidating the EEOC’s regulations, the court of 
appeals stated that, 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, however, 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 applica- 
ble to the text of the ADA. It is particularly inappropriate 
to apply the expressio unius canon to the Act’s legislative 
history, because “the language of a statute * * * is not to 
be regarded as modified by examples set forth in the 

15 

legislative history.” Pension Benefit Guar. Corp. v. LTV 
Corp., 496 U.S. 633, 649 (1990) (not reasonable to assume 
that Congress intends a “list of examples” in legislative 
history to be “exhaustive”). In any event, the references in 
the legislative history to the direct threat defense are not 
limited to risks to persons in the workplace. See note 4, 
supra. 

The court of appeals also relied upon a floor statement 
made by Senator Kennedy, one of the ADA’s sponsors. Pet. 
App. 8a-9a. In those remarks, Senator Kennedy stated that, 
because “the ADA specifically refers to health and safety 
threats to others,” “employers may not deny a person an 
employment opportunity based on paternalistic concerns 
regarding the person’s health.” 136 Cong. Rec. S9684-03, 
S9697 (daily ed. July 13, 1990). “For example,” Senator 
Kennedy explained, “an employer could not use as an excuse 
for not hiring a person with HIV disease the claim that the 
employer was simply ‘protecting the individual’ from oppor- 
tunistic diseases to which the individual might be exposed.” 
Ibid. 

“The remarks of a single legislator, even the sponsor, are 
not controlling in analyzing legislative history,” Chrysler 
Corp. v. Brown, 441 U.S. 281, 311 (1979), and such remarks 
certainly do not provide the requisite clarity to foreclose an 
agency’s reasonable interpretation of a statute’s text. In any 
event, the EEOC’s interpretation is consistent with Senator 
Kennedy’s stated concern about paternalistic employment 
practices. See p. 21, supra (explaining that the EEOC’s 
regulations do not permit an employer to base a threat-to- 
self defense on “[g]eneralized fears about risks from 
the employment environment,” 29 C.F.R. Pt. 1630, App. 
§ 1630.2(r)). 

16 

D. The EEOC’s Threat-To-Self Regulations Reflect A 

Reasonable Interpretation Of The ADA 

1. A qualification standard that ensures that an 

individual’s job performance will not directly 

threaten the individual’s health and safety is job- 
related and consistent with business necessity 

Because Congress has not “directly addressed the precise 
question” at issue, the EEOC’s threat-to-self regulations are 
valid so long as they constitute a “reasonable interpretation 
made by the administrator of an agency.” Chevron, 467 U.S. 
at 843, 844. The EEOC reasonably has concluded that an 
employer’s qualification requirement that an individual’s 
employment not pose a significant risk of seriously injuring 
or contributing to the death of the individual is both job- 
related and consistent with business necessity. Maintaining 
a safe workplace is itself a business necessity.5 

In the first place, ensuring worker safety reduces injuries 
and the resulting absences of critical employees. When 
there is a high probability that an employee will suffer sig- 
nificant injury or death in the near future because of his 

5 Like the ADA, Title VII permits employment practices that are job- 
related and “consistent with business necessity.” 42 U.S.C. 2000e-2(k). 
“Measures demonstrably necessary to meeting the goal of ensuring 
worker safety are * * * deemed to be ‘required by business necessity’ 
under Title VII.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1119 (11th 
Cir. 1993); see also Smith v. City of Des Moines, 99 F.3d 1466, 1472 (8th 
Cir. 1996) (applying business necessity defense under the Age Dis- 
crimination in Employment Act and noting employer’s “legitimate interest 
in determining whether its employees can perform [job] duties safely.”). 
This Court also has recognized under Title VII that business necessity 
may justify an employment practice “shown to be necessary to safe and 
efficient job performance.” Dothard v. Rawlinson, 433 U.S. 321, 332 n.14 
(1977); see also New York City Transit Auth. v. Beazer, 440 U.S. 568, 587 

n.31 (1979) (recognizing a business’s “legitimate employment goals of 
safety and efficiency”). 

17 

performance of the job, there is necessarily a related risk 
that the employee will miss work due to injury. In that 
event, the employer will likely sustain losses in efficiency 
and productivity due to the disruption of its operations and 
the need to find a replacement and retrain a new worker. 
See Haig Neville, 40 Industrial Management, Workplace 
accidents: they cost more than you think 7 (Jan.-Feb. 1998) 
(workplace injuries have “immeasurable costs of lost pro- 
duction and efficiency on a company-wide basis”); accord 
Valerie Overheul, 70 Occupational Health and Safety, 20 
Years of Safety 70 (June 2001); David W. Wilbanks, 63 
Occupational Hazards, Common Safety Myths 13 (Oct. 2001). 

Likewise, serious workplace injuries pose other unique 
costs on employers in terms of the decreased morale and 
productivity of employees who may question the employer’s 
commitment to workplace safety upon hearing that an em- 
ployee has suffered injury, or even died, on the job. H. 
Neville, supra, at 8 (“[E]ffective safety standards in the 
workplace boost employee morale by conveying the message 
that the company cares enough about its people to protect 
their health and safety.”). It may be difficult to convince 
fellow workers that an employee’s injury or death resulted 
from a disability that posed a unique threat to that 
employee, rather than from general conditions that threaten 
the entire workforce. In addition, requiring an employer to 
hire an individual who is likely to suffer injury or death on 
the job could expose the employer to substantial litigation 
costs in defending tort suits and other claims based on 
allegations that the employer intentionally exposed the 
individual to danger or failed to avert the risk of harm to the 
individual. See V. Overheul, supra, at 70 (“Accidents and 
injuries * * * costs come in the form of property damage, lost 

18 

worker productivity, lowered morale, worker’s compensation 
costs, and even lawsuits.”).6 

The combined effect of those costs to the employer is 
significant and the costs are similar to those incurred by an 
employer forced to hire a disabled individual who poses a 
direct threat to the health or safety of others. 

The ADA 

expressly recognizes that an employer has a defense in 
refusing to hire such an applicant. 42 U.S.C. 12111(3), 
12113(b). Many of the same reasons underlying that 
defense—efficiency, productivity, employee morale, and liti- 
gation costs—also justify recognition of a parallel defense 
based on the threat to the worker. In both instances, a 
business has a legitimate interest in not hiring an individual 
whose job performance poses a “significant risk of sub- 
stantial harm” to “health or safety.” 29 C.F.R. 1630.2(r); see 
EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1283 
(7th Cir. 1995) (“It would seem that a requirement that em- 
ployees not pose a significant safety threat in the workplace 

6 In International Union v. Johnson Controls, Inc., 499 U.S. 187, 210 
(1991), discussed pp. 22-23, infra, the Court left open the question whether 
state tort suits stemming from workplace lead exposures to fetuses would 
be preempted by Title VII, stating that “the pre-emption question is not 
before us.” The Court observed that, because the employer in that case 
had complied with OSHA lead exposure standards and the employer had 
advised women of the risks, “[w]ithout negligence, it would be difficult for 
a court to find liability on the part of the employer.” Id. at 208. Here, the 
direct threat defense is applicable only when the employee actually faces a 
significant risk of workplace injury or death. If the ADA is interpreted to 
require an employer to hire an employee who poses a threat to self, the 
employer may be able to use the ADA as a shield against a claim that the 
employer intentionally exposed the worker to a significant risk of injury or 
death. On the other hand, a court could conclude that the ADA sets only a 
floor and that the employer could and should comply with both the ADA 
and state law obligations to protect the worker from harm. At a minimum, 
the employer would incur substantial litigation expenses until the issue is 
resolved. 

19 

would obviously be consistent with business necessity: a safe 
workplace is a paradigmatic necessity of operating a 
business.”). 

As this Court has recognized, an “enquiry [into statutory 
meaning] may be guided by the examples” given in a statute. 
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994) 
(holding that parody constitutes fair use under Copyright 
Act because it shares the same purpose as statutory 
examples of fair use). It follows, a fortiori, that an agency’s 
interpretation of a statute to cover situations similar to those 
covered by the text is reasonable. Accordingly, in light of 
the similar purposes animating a threat-to-others defense 
and a threats-to-self defense, the EEOC acted reasonably in 
including the latter in its business necessity regulations.7 

2. The EEOC reasonably modeled its regulations the 

Rehabilitation Act of 1973 

As the EEOC noted when it promulgated its regulations, 
56 Fed. Reg. at 35,730, interpreting the ADA to include a 
threat-to-self defense is consistent with judicial precedent 
under the Rehabilitation Act of 1973, 29 U.S.C. 791 et seq., as 
well as the EEOC’s regulations interpreting that Act. The 
Rehabilitation Act protects only “qualified” individuals with 
disabilities but does not define that term. See 29 U.S.C. 
793(a), 794(a). In implementing Section 501 of that Act, 

7 The Occupational Safety and Health Act prohibits employers from 
exposing exmployees to “recognized hazards” that are likely to cause 
“death or serious physical harm,” and imposes a “general duty” to furnish 
a safe workplace. 29 U.S.C. 654(a)(1). This general duty clause has not 
been interpreted as rquiring employees to refuse employment to job 
applicants, but it is not clear how this clause would apply to an employer 
that hires a worker who posed a clear threat to his or her own safety on 
the job. Uncertainty over the employer’s regulatory obligations to such 
an employee, along with the uncertainty over potential tort liability, 
reinforces the reasonableness of the EEOC’s adoption of a threat-to-self 
defense. 

20 

which is applicable to public employers, the EEOC promul- 
gated a regulation that defined a “[q]ualified handicapped 
person” as a “handicapped person who, with or without rea- 
sonable accommodation, can perform the essential functions 
of the position in question without endangering the health or 
safety of the individual or others.” 29 C.F.R. 1613.702(f) 
(1979) (emphasis added); see also 43 Fed. Reg. 12,295 (1978) 
(rules of Civil Service Commission). 

Moreover, at the time the ADA was passed, courts 
applying Sections 501 and 504 of the Act had recognized that 
an employer could consider the safety of the individual in 
setting qualification standards. Mantolete v. Bolger, 767 
F.2d 1416, 1421-1422 (9th Cir. 1985); Bentivegna v. United 
States Dep’t of Labor, 694 F.2d 619, 621-623 (9th Cir. 1982). 
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 regulations interpreting 
the distinct statutory language of the ADA. 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”).8 

8 In 1992, Congress completed the circular relationship between the 
ADA and the Rehabilitation Act by amending the latter to require that 
the standards used to determine whether that Act has been violated “shall 
be the standards applied” under the ADA’s employment provisions. 
29 U.S.C. 791(g). The EEOC has proposed regulations under Section 501 
to provide that concerns about risks to health and safety from an individ- 
ual’s job performance will be governed by the EEOC’s direct threat 
regulations under Title I of the ADA. See 65 Fed. Reg. 11,019 (2000). It 
would be ironic indeed if the invalidation of the threat-to-self defense 
under the ADA would thus result in invalidating threat-to-self concerns 
under the Rehabilitation Act. 

21 

3. The regulations do not foster paternalistic employ- 
ment practices 

At the same time that the EEOC’s regulations accommo- 
date legitimate business concerns, they also protect disabled 
employees from “overprotective rules and policies” (42 
U.S.C. 12101(a)(5)) based on “stereotypic assumptions” 
(42 U.S.C. 12101(a)(7)). Under the regulations, employers do 
not have license to “deny a person an employment opportu- 
nity based on paternalistic concerns regarding the person’s 
health.” Pet. App. 8a (quoting 136 Cong. Rec. at S9697 
(statement of Sen. Kennedy)). As with the statutory threat- 
to-others defense, there is some danger that employers could 
incorporate the very stereotypes the ADA guards against 
into generalized conclusions that individuals with certain dis- 
abilities pose a threat to themselves. The EEOC’s regula- 
tions prohibit such generalizations and paternalism in the 
application of both defenses by requiring the employer to 
prove “significant risk of substantial harm to the health or 
safety of the individual or others,” based “on an individual- 
ized assessment” of the individual’s ability to safely perform 
the essential functions of the job. 29 C.F.R. 1630.2(r); see 
School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 
(1987) (“an individualized inquiry” protects disabled indivi- 
duals “from deprivations based on prejudice, stereotypes, or 
unfounded fear”). 

The regulations further prohibit employment decisions 
based on “[g]eneralized fears about risks from the employ- 
ment environment.” 29 C.F.R. Pt. 1630, App. § 1630.2(r); see 
also 29 C.F.R. Pt. 1630, App. § 1630.15(a) (An employer may 
not base an employment decision on a generalized concern 
that hiring disabled persons “would cause the employer’s 
insurance premiums or workers’ compensation costs to in- 
crease.”); accord S. Rep. No. 116, supra, at 28 (“It would also 
be a violation to deny employment to an applicant based on 

22 

generalized fears about the safety of the applicant or higher 
rates of absenteeism. By definition, such fears are based on 
averages and group-based predictions. This legislation re- 
quires individualized assessments.”) (emphases added); ac- 
cord H.R. Rep. No. 485, supra, Pt. 2, at 58. 

Thus, in considering whether an individual poses a direct 
threat, the regulations require the employer to consider 
“(1) [t]he duration of the risk; (2) [t]he nature and severity of 
the potential harm; (3) [t]he likelihood that the potential 
harm will occur; and (4) [t]he imminence of the potential 
harm.” 29 C.F.R. 1630.2(r). The regulations require that 
those factors be assessed “based on a reasonable medical 
judgment that relies on the most current medical knowledge 
and/or on the best available objective evidence,” ibid., 
and “not on subjective perceptions, irrational fears, patroniz- 
ing attitudes, or stereotypes,” 29 C.F.R. Pt. 1630, App. 
§ 1630.2(r). See Bragdon v. Abbott, 524 U.S. at 649-652 (dis- 
cussing direct threat defense under Title III of the ADA). 
In addition, by treating employer concerns about threat to 
self as a defense, the regulations appropriately place the 
burden of proof on employers. See pp. 25-27, supra. 

For similar reasons, the court of appeals erred in relying 
on International Union v. Johnson Controls, Inc., 499 U.S. 
187, 202 (1991), for its conclusion that Congress intended the 
ADA to “allow all individuals to decide for themselves 
whether to put their own health and safety at risk.” Pet. 
App. 10a. Johnson Controls held that an employer’s policy 
prohibiting all women of child-bearing age from certain jobs 
that involve exposure to lead violates Title VII because the 
policy could not be justified as a bona fide occupational 
qualification (BFOQ). 499 U.S. at 207.9 

9 The Court in Johnson Controls observed that “[t]he business neces- 
sity standard is more lenient for the employer than the statutory BFOQ 
defense.” 499 U.S. at 198. Because the court determined that the em- 

23 

The anti-paternalism principles recognized in that decision 
are consistent with, and indeed reflected in, the EEOC’s 
threat-to-self defense regulations. As discussed above, the 
EEOC’s regulations do not permit an employer to adopt 
policies, rooted in “general subjective standards,” that “ex- 
plicitly discriminate” against a class on the basis of a 
protected trait. 499 U.S. at 197, 201. Rather, the regulations 
require an employer to conduct an “individualized” and 
“objective” assessment of whether the individual’s perfor- 
mance of the job raises a “significant risk of substantial harm 
to the health or safety of the individual.” 29 C.F.R. 1630.2(r). 
That inquiry necessarily focuses on a particular individual’s 
ability to perform the job safely, an inquiry that was missing 
from the employer’s policy in Johnson Controls. 499 U.S. at 
207 (noting that there was no “factual basis for believing that 
all or substantially all women would be unable to perform 
safely and efficiently the duties of the job involved”) (inter- 
nal quotation marks omitted). Accordingly, the type of 
generalized and paternalistic employment policy invalidated 
in Johnson Controls would not satisfy the EEOC’s direct 
threat regulations. The EEOC’s regulations are thus emi- 
nently reasonable, and the court of appeals erred in 
invalidating them. 

10 

ployer’s fetal-protection policy was facially discriminatory and therefore 
had to be justified as a BFOQ, id. at 200, the Court did not decide whether 
the employer’s policy would satisfy a business necessity defense. 

10 The reasonableness of the EEOC’s threat-to-self regulations is not 
undermined by the fact that the Department of Justice has issued regu- 
lations under the direct threat provision of Title III of the ADA, 42 U.S.C. 
12182(b)(3), that do not refer to threats to self. See 28 C.F.R. 36.208(b). 
Title III protects against disability-based discrimination in public accom- 
modations. By contrast, Title I authorizes a direct threat defense as a 
type of employment “qualification standard” that is job-related and con- 
sistent with business necessity. Such a business necessity defense, which 
does not exist under Title III, recognizes that an employer has a legiti- 

24 

II. RESPONDENT IS A “QUALIFIED INDIVIDUAL” 
UNDER THE ADA 

A. Respondent Established That He Was A Qualified 

Individual 

Although the court of appeals erred in invalidating the 
EEOC’s direct threat regulations, it correctly determined 
that respondent is a “qualified individual” within the mean- 
ing of Title I of the ADA. Pet. App. 14a-18a. Title I prohib- 
its an employer from discriminating against a “qualified indi- 
vidual with a disability.” 42 U.S.C. 12112(a). To be a 
“qualified individual,” an individual must be able, “with or 
without reasonable accommodation, [to] perform the essen- 
tial functions of the employment position.” 42 U.S.C. 
12111(8). 

The EEOC’s regulations define “essential functions” to 
mean “the fundamental job duties of the employment posi- 
tion the individual with a disability holds or desires.” 
29 C.F.R. 1630.2(n)(1); see also S. Rep. No. 116, supra, at 26 
(“The phrase ‘essential functions’ means job tasks that are 
fundamental and not marginal.”); H.R. Rep. No. 485, supra, 
Pt. 2, at 55 (same). The EEOC also has concluded that “[t]he 
determination of whether an individual * * * is qualified 
is to be made at the time of the employment decision.” 
29 C.F.R. Pt. 1630, App. § 1630.2(m); accord S. Rep. No. 116, 
supra, at 26; H.R. Rep. No. 485, supra, Pt. 2, at 55. The 
plaintiff bears the burden of demonstrating his ability to 
perform the essential functions of the job at issue. See, e.g., 
Webner v. Titan Distribution, Inc., 267 F.3d 828, 833 (8th 
Cir. 2001). 

In this case, respondent met his burden of showing that he 
is a qualified individual under the ADA. Indeed, respon- 

mate interest in hiring workers whose performance on the job is not 
compromised by a condition that carries with it a significant risk of sub- 
stantial, imminent harm to the health or safety of the worker. 

25 

dent’s own work history demonstrates that he satisfies the 
qualified individual standard. There is undisputed evidence 
that respondent was capable of performing the essential 
duties of the plant helper position in the coker unit and, in 
fact, did so successfully as a contractor’s employee for over 
20 years (the latest three after respondent’s doctors first 
diagnosed respondent’s liver condition). C.A. E.R. 328-329; 
see also Pet. App. 17a (Petitioner “has never contended that 
the risk [respondent] allegedly poses to his own health 
renders him unable to perform [job] duties.”). 

B. The EEOC’s Regulations Properly Place On The 

Employer The Burden Of Showing That An Employee 

Would Pose A Direct Threat To The Health Or Safety 

Of Himself Or Others 

1. As previously stated, the ADA provides that, if an 
employer uses a qualification standard that screens out or 
tends to screen out an individual with a disability, the 
employer must demonstrate that the standard is job-related 
and consistent with business necessity. 42 U.S.C. 
12112(b)(6). Consistent with that allocation of the burden of 
proof, the ADA denotes a valid qualification standard as a 
“defense” and includes it in 42 U.S.C. 12113 under the head- 
ing “Defenses.” Under that same heading of “Defenses,” the 
ADA specifically permits “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). 

The statutory text and structure of the ADA support the 
treatment of direct threat concerns as a defense with the 
burden on the employer. If the employee had the burden of 
disproving any threat to self or others to establish qualified 
individual status, the business necessity and direct threat 
provisions would be rendered superfluous. They would sim- 
ply reiterate a requirement already found in the threshold 
definition of “qualified individual.” General principles of 

26 

statutory interpretation prohibit such a construction. See, 

e.g., Dunn v. CFTC, 519 U.S. 465, 472 (1997) (legislative en- 
actments “should not be construed to render their provisions 
mere surplusage”). A statutorily-designated “defense” for 
threats to others cannot be made part of a plaintiff ’s case in 
chief without turning the Act on its head. In light of the 
EEOC’s decision to interpret the business necessity defense 
to include a threat-to-self defense, the burden for meeting 
that defense likewise rests on the employer. The legislative 
history supports the same result. 

11 

2. To be sure, there may be some instances in which the 
employer’s qualification standard is so integral to a job that 
there will be substantial overlap between the issue whether 
an individual is qualified and whether the individual poses a 
threat to health and safety. For example, jobs in which 
safety concerns are paramount, such as an airline pilot or a 
firefighter, may demand an ability to perform the job safely, 
and so the individual’s proof that he can perform essential 
job functions will necessarily implicate issues of safety. See 
29 C.F.R. Pt. 1630, App. § 1630.2(n) (firefighter who could 
not “carry an unconscious adult out of a burning building” 
would not be qualified to perform the essential functions of 
the position); cf. Albertson’s, Inc. v. Kirkingburg, 527 U.S. 
555, 578-580 (1999) (Thomas, J., concurring). But it is not 
always true that an ability to perform a job safely is 
inextricably tied to the performance of essential job func- 
tions. This is a case in point. As noted, respondent per- 
formed this job successfully for decades. Although peti- 

11 See H.R. Rep. No. 485, supra, Pt. 3, at 42 (qualification standard that 
has discriminatory effect on disabled persons is unlawful “unless the 
employer can demonstrate that it is jobrelated and required by business 
necessity”) (emphasis added); id. at 46 (an otherwise qualified applicant 
for a job “cannot be disqualified on the basis of a physical or mental condi- 
tion unless the employer can demonstrate that the applicant’s disability 
poses a direct threat to others in the workplace”) (emphasis added). 

27 

tioner may have a valid threat-to-self defense, respondent 
can perform the essential tasks of the job. In other words, 
respondent may be disqualified by a valid qualification stan- 
dard, but he is not unqualified to perform the job tasks at 
issue. 

A contrary reading of the statute, incorporating the ab- 
sence of a threat to self or others as a prerequisite for every 
job, would ignore Congress’s choice to make qualification 
standards in general, and threat-to-others concerns in 
particular, a “defense” to liability. Congress’s choice to label 
those provisions “[d]efenses,” and the EEOC’s parallel deci- 
sion to create a threat-to-self defense, reflect the fact that 
the employer, not the employee, is in the superior position to 
prove whether the absence of a threat to self or others is 
required by business necessity. 

12 

3. In arguing that respondent is not a “qualified individ- 
ual,” petitioner relies (Pet. 18, 24) on the fact that, under the 
Rehabilitation Act, concerns about threats to self and others 
are considered in the determination whether a plaintiff is a 
“qualified” individual. See pp. 19-20, supra. That fact, how- 

12 In Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 569 (1999), this 
Court noted the EEOC’s view that, “when an employer would impose any 
safety qualification standard, however specific, tending to screen out 
individuals with disabilities, the application of the requirement must 
satisfy the ADA’s ‘direct threat’ criterion.” See 29 C.F.R. Pt. 1630, App. 
§ 1630.15(b) and (c). The Court stated that the “[g]overnment’s interpre- 
tation * * * might impose a higher burden on employers to justify 
safety-related qualification standards than other job requirements.” 527 
U.S. at 569-570 n.15. Whether or not the appropriate burden is that 
reflected in the direct threat provision of Section 12113(b), or some 
different standard under Section 12113(a), it is clear that the burden of 
proof rests with the employer. Moreover, in this case, the direct threat 
burden properly would apply in light of the EEOC’s decision to frame the 
threat-to-self defense in direct threat terms and the clear parallelism 
between the statutory threat-to-others defense and the regulatory threat- 
to-self defense. 

28 

ever, does not preclude the EEOC’s interpretation of the 
ADA. The Rehabilitation Act, unlike the ADA, does not 
include a separate defense section and so concerns about 
threats to self and others are addressed under the general 
rubric of whether an individual is qualified. The Rehabilita- 
tion Act thus permits an employer to set a qualification 
standard that excludes a disabled person when the standard 
is necessary to avert a significant risk to health and safety. 
See Arline, 480 U.S. at 287 n.16 (“A person who poses a 
significant risk of communicating an infectious disease to 
others in the workplace will not be otherwise qualified for 
his or her job if reasonable accommodation will not eliminate 
that risk.”). Moreover, at the time of the ADA’s passage, 
courts and the EEOC recognized that the employer bore the 
burden on this issue. 

13 

Congress in the ADA essentially codified that result, 
albeit under a modified statutory framework. See Bragdon 

v. Abbott, 524 U.S. at 649 (“The ADA direct threat provision 
stems from the recognition in School Board of Nassau 
County v. Arline, [supra], of the importance of prohibiting 
discrimination against individuals with disabilities while 
protecting others from significant health and safety risks.”); 
S. Rep. No. 116, supra, at 76 (citing Arline in discussing 

13 See Mantolete, 767 F.2d at 1421-1423; Bentivegna, 694 F.2d at 621- 
623; Federal Sector Equal Employment Law and Practice Ch. XIV, 
B(3)(f ) and F(1)(f ) (2001) (discussing EEOC’s pre-ADA federal sector 
decisions under Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. 
791); see also H.R. Rep. No. 485, supra, Pt. 2, at 57, 74 (citing the 
Mantolete and Bentivegna decisions). Since the passage of the ADA, 
courts have not always been clear under the Rehabilitation Act as to 
which party bears the burden of showing a probability of substantial harm 
to the safety of the individual or others. Compare, e.g., Chandler v. City 
of Dallas, 2 F.3d 1385, 1394 (5th Cir. 1993) (burden on employee), with 
Chiari v. City of League City, 920 F.2d 311, 315-317 (5th Cir. 1991) 
(burden on employer). 

29 

ADA’s direct-threat defense); H.R. Rep. No. 485, supra, Pt. 
2, at 76 (same); H.R. Rep. No. 485, supra, Pt. 3, at 34, 45 
(same). By including in the ADA a defense for qualification 
standards that are job-related and consistent with business 
necessity and specifically defining that defense to include a 
direct threat principle, Congress made explicit what was 
already implicit in the Rehabilitation Act and made abun- 
dantly clear that under the ADA the burden for proving a 
direct threat defense rests with the employer. 

* * * * * 

In short, the court of appeals correctly held that 
respondent is a “qualified individual” under Title I of the 
ADA, but the court erred in invalidating the EEOC’s regu- 
lations and precluding petitioner’s defense that respondent’s 
performance of the job posed a direct threat to his own 
health or safety. By addressing threat-to-self concerns as a 
regulatory defense to liability, the EEOC struck a proper 
balance between the rights of disabled individuals to work 
free of discrimination and employers’ need to maintain a safe 
workplace. Under the EEOC’s regulations, an employer 
need not hire an employee who poses a threat to self, but 
only if the employer demonstrates, on an individualized 
basis, a real threat to the employee’s health. The decision 
below pretermitted that inquiry. The case should therefore 
be remanded for the proper application of the direct threat 
standard as set forth in the EEOC’s regulations. 

30 

CONCLUSION 

The judgment of the court of appeals should be reversed. 

Respectfully submitted. 

NICHOLAS M. INZENO 

Acting Deputy General 

Counsel 
PHILLIP B. SKLOVER 

Associate General Counsel 
CAROLYN L. WHEELER 

Assistant General Counsel 
ROBERT J. GREGORY 

Senior Trial Attorney 
Equal Employment 

Opportunity Commission 
THEODORE B. OLSON 

Solicitor General 
ROBERT D. MCCALLUM, JR. 

Assistant Attorney General 
PAUL D. CLEMENT 

Deputy Solicitor General 
LISA SCHIAVO BLATT 

Assistant to the Solicitor 

General 
MARLEIGH D.DOVER 
MATTHEW COLLETTE 

Attorneys 

DECEMBER 2001