By Ruthie Nelson White, LL.M. Candidate
Should a steelworker who develops vertigo keep his job constructing high-rise buildings? What about a welder with narcolepsy or epilepsy? Is he entitled to his job? Should an individual with life-threatening allergies to ink insist on a job printing bank notes? More importantly, how many doctors’ opinions should an employer obtain before determining whether an employee is a threat to himself?
Last year, the U.S. Supreme Court faced these very issues in Echazabal v. Chevron. See 536 U. S. 73 (2002). Mario Echazabal worked as a contractor in the coker unit of a Chevron refinery in El Segundo, California for some twenty years. The coker unit burns petroleum coke (a variety of coal) in the process of making gasoline. In 1992, he applied to work directly for Chevron. The company extended him a job offer contingent upon his passing a physical examination. The exam revealed that Echazabal’s liver produced unusually high levels of enzymes. Dr. Bailey, the company doctor who was board certified in occupational medicine, concluded that exposure to toxins at the unit "could be fatal" and advised Echazabal (who wasn’t aware of any liver problems) to consult with his personal physician. Chevron’s job offer was rescinded.
Echazabal sought medical treatment but, although prescribed interferon, continued to show high levels of enzymes. He nevertheless continued to work at the refinery as a contractor and in 1995, he applied for a position at Chevron again. By this time, Echazabal was diagnosed with hepatitis C, a degenerative liver disease that can lead to cirrhosis, liver failure, and death. According to the Centers for Disease Control, hepatitis C occurs when blood or body fluids from an infected person enters the body of a person who is not infected and frequently causes chronic liver disease. See http://www.cdc.gov/ncidod/diseases/hepatitis/c/fact.htm. Also, according to the National Institutes of Health, hepatitis C is the largest cause of liver transplants. See http://www.niaid.nih.gov/dmid/hepatitis/hepcfacts.htm.
Again citing the risk to his health, Dr. McGill (the company’s doctor at that time and a general practitioner who had practiced industrial medicine since 1980) determined that exposure to hepatotoxins, chemicals that are toxic to the liver, “could seriously endanger his health.” Dr. McGill contacted Dr. Weingarten, Echazabal’s physician, who concurred with his decision. Moreover, Dr. Bridge (Chevron’s medical director and also a physician) agreed that the chemicals at the plant presented a “significant risk” to Echazabal’s health. The job offer was rescinded, and Chevron directed the contractor to reassign Echazabal elsewhere. The contractor sent Echazabal to its doctor and, after a similar diagnosis, fired Echazabal in 1996.
Echazabal then sued Chevron, claiming he had been discriminated against in violation of the Americans with Disabilities Act (ADA). Under the ADA, employers are prohibited from discriminating against workers with disabilities. See 42 U.S.C. § 12101 et. seq. However, the statute allows an exemption if a person is not qualified to perform the job or if the person’s disability poses a direct threat to the health or safety of other individuals in the workplace. 42 U.S.C. § 12113(b) (2000).
In the district court, Chevron contended that Echazabal was not qualified to perform his job safely and also asked the court to read the “threat to others” exemption broadly to include "threat to self." See U.S. District Court, Central District of California. D.C. No. CV-97-03498-LGB. Chevron pointed to a similar interpretation of the defense in a regulation issued by the Equal Employment Opportunity Commission (EEOC), which interprets and enforces the ADA. See 29 C.F.R. § 1630.15(b)(2)(2001). In contrast, Echazabal argued that the EEOC had it wrong because such a paternalistic view perpetuates discrimination and the statute’s exemption should not be read so broadly. Echazabal argued that he was capable of performing the job for years and was thus qualified.
Further, even if the job was dangerous to his health, Echazabal argued that the choice was his, not the employer’s. After the lawsuit was filed, Echazabal submitted testimony from two medical professors (toxicology and liver disease experts) who testified that enzyme tests show infection, not liver function. They further opined that: Echazabal’s liver functioned properly; chemical exposure would not cause him greater harm than it would any co-worker; and it could take decades to impair his liver function.
The district court granted summary judgment to Chevron and refused to consider Echazabal’s experts' testimony because it was not presented prior to Echazabal's firing. See U.S. District Court, Central District of California. D.C. No. CV-97-03498-LGB. The court did, however, certify the question regarding the “threat to self” defense for appeal. In a split decision, a panel of the Ninth Circuit refused to read the ADA exemption broadly and upheld Echazabal’s claim. See 226 F.3d 1063 (9th Cir. 2000). In a unanimous decision issued in June of last year, the U.S. Supreme Court upheld the regulation issued by the EEOC, holding that employers may refuse to place a disabled worker in a position that may pose a risk of harm to self. See 536 U.S. 73, 93 (2000). The Court emphasized that the defense, according to the regulations, must be based on a reasonable medical judgment that relies on the most current medical knowledge and requires an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. Id.; see also 29 C.F.R. § 1630.2 (r ).
It would seem that an individualized assessment based on reasonable medical judgment occurred in this case, given the fact that Chevron relied on the advice of its own doctors, combined with concurrence from Echazabal’s personal physician. Makes sense, right?
In July 2003, however, Chevron learned that even victories from the Supreme Court are short-lived. The Ninth Circuit concluded that Chevron failed to rely on appropriate medical information, reinstated Echazabal'’ lawsuit and sent it back to the district court. See 336 F.3d 1023 (9th Cir. 2003). Although Echazabal’s own personal physician expressed concern about his liver function and exposure to hepatotoxins, the Ninth Circuit found that his experts’ opinions and that fact that Echazabal worked at the refinery for more than 20 years without injury carried more weight. In a lengthy dissent, Judge Stephen Trott emphasized that “[r]eliance on facially reasonable opinions rendered by trained physicians does not become unlawful discrimination merely because allegedly conflicting opinions are later produced.” 336 F.3d 1023, 1036. Judge Trott further wrote, “the legal standard urged in this case by the plaintiff will neither prevent discrimination, nor protect worker health.” Id.
Where does that leave an employer? Even the Ninth Circuit cannot agree. What is clear is that while all of the doctors consulted in this case (a total of five) agreed that Echazabal should not be exposed to chemicals at the refinery, the Ninth Circuit suggests that the employer should consult with experts who specialize in the specific ailment in each instance to successfully argue the “threat to self” defense. An who is to say there are not experts a plaintiff will not produce at trial that will make the employer’s expert’s opinion an issue? What the Ninth Circuit chose to ignore was the evidence before Chevron at the time of the employment decision! If a plaintiff is allowed to present a conflicting doctor’s opinion several months after the adverse employment decision is made and a year later after the lawsuit is filed, an employer’s “threat to self” defense is simply a mirage.
Tragically, as stated by the Equal Employment Advisory Council in its
brief to the Supreme court, “[w]hile some individuals may be courageous
or reckless enough to ignore a doctor’s warning, the employee is not the
only one with a stake in the matter…[in the event of an injury], an employer
will have a difficult time convincing anyone, be it a jury or OSHA, that
it should not be held accountable…” See Lexis 2000 U.S. Briefs
1406, p. *22. Ultimately, although it seems that a jury will make
the next decision, this case is far from being over.