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Are disabled entitled to jobs that kill?

By
MICHAEL KIRKLAND, UPI Legal Affairs Correspondent

WASHINGTON, Feb. 27 (UPI) -- Does the Americans with Disabilities Act force employers to hire disabled workers for a job, even when the position could cause injury or death to the worker?

A lower court has said yes, but the Supreme Court heard argument Wednesday on the issue and will make the final decision.

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Any Supreme Court ruling should come within the next few months and will affect businesses of any size across the country.

The ADA covers all workplaces with 15 or more employees. In general, the act bans discrimination against the disabled and tells employers they must make a reasonable attempt to accommodate the disabled.

One ADA provision says employers may refuse to hire a disabled worker when there is a "direct threat," and defines that threat as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation."

The case that led to Wednesday's Supreme Court argument involves Mario Echazabal, who was employed by an independent contractor to work at the Chevron refinery in El Segundo, Calif.

Twice Echazabal tried to be employed directly by Chevron, and twice the company approved his employment on the condition he pass a physical exam. Each time the employment offer was rescinded.

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The first time, doctors found a liver abnormality and concluded that exposure to toxic fumes at the refinery would exacerbate it. The second time, doctors found he had significant liver damage, and that exposure to the chemicals at Chevron could harm or kill him, according to court records.

In 1996, Echazabal's personal physician wrote Chevron to say that the worker's Hepatitis C was not contagious and he could return to his job. However, Chevron told the contractor that Echazabal should not be employed at the refinery and the contractor fired him.

Echazabal then filed suit against Chevron in state court, saying the company had violated the ADA when it withdrew its 1995 work offer. Chevron had the case removed to federal court.

There, a federal judge ruled for the company, saying under the ADA, an employer may refuse to hire someone when the job would be a threat to the potential employee's health.

A federal appeals court reversed. The judges' panel ruled 2-1 that the ADA allows an employer not to hire someone when that person's disability is a "direct threat" to another worker, but does not allow an employer to refuse a job to someone whose own health would be threatened.

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Chevron then asked the Supreme Court for review.

Speaking for the company Wednesday, Chicago attorney Stephen Shapiro told the justices, "The chemicals in this (El Segundo) refinery were liver toxins," and cited the 8,000 to 10,000 deaths caused each year by Hepatitis C.

"Now, none of this matters, according to the (appeals court majority)," Shapiro said.

In response to questions from Justice Ruth Bader Ginsburg, Shapiro said the ADA's provision allowing an employer not to hire a disabled person when that person would pose a "direct threat" to others was just an example of a larger category of exceptions, not an all-inclusive category by itself.

Shapiro cited another provision of the ADA that said an employer "may make employment contingent upon an examination ... and may condition an offer of employment based on that examination."

From the bench, Justice Stephen Breyer said there seemed to be a dispute about how dangerous Echazabal's condition really was. "Why does he want to kill himself?" Breyer asked rhetorically.

Shapiro replied that there was no dispute, and Echazabal's condition made him not qualified for the job.

"We say he is like the steelworker with vertigo who can fall off (the beam) at any time."

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The Bush administration supported Chevron. Lisa Blatt, assistant to the U.S. solicitor general, told the justices that employers have an interest in keeping their employees from being hurt or killed.

"The mere fact that the employee consents to that risk cannot trump the employer's interest," she said.

Cambridge, Mass., attorney Samuel Bagenstos argued for Echazabal.

The language of the statute makes it plain that an employer is allowed to refuse a job to a disabled worker when the worker's employment would pose "a direct threat" to others, Bagenstos said. It did not allow such a refusal when the danger is to the disabled worker alone, he contended.

Bagenstos also argued that the risk to his client was small, at least according to physicians who testified on his behalf during the case.

Justice John Paul Stevens asked Bagenstos whether he was arguing that disabled employees have the right to take the risk, even at their peril.

"I think they have the same right as people who don't have disabilities," Bagenstos said. " ... The real issue is whether the employer or the employee gets to make that decision ... We believe that Congress" in the language of the ADA "left that decision firmly in the hands of the employee."

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Bagenstos's arguments eventually became too much for Justice Anthony Kennedy, who at one point asked, "Is it wrong in this society to say that an employer should care about an employee?"

A number of business and employers groups have also filed briefs with the Supreme Court in support of Chevron.

On the other side, a number of advocates for the disabled have filed briefs in support of Echazabal. One of those briefs, filed by the National Council on Disability, said if Chevron prevails it would "endorse the unjustified paternalism and stereotyping (of the disabled) that Congress expressly sought to eliminate" with the ADA.

(No. 00-1406, Chevron vs. Echazabal)

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