More MS news articles for Mar 2002

Justices Weigh Another Case on ADA's Scope

http://www.washingtonpost.com/ac2/wp-dyn/A13784-2002Feb27?language=printer

Thursday, February 28, 2002; Page A05
By Charles Lane
Washington Post Staff Writer

The coker unit at Chevron's El Segundo, Calif., refinery is a heavy industrial workplace where employees recycle waste oil into usable chemicals. The air is tinged with acids, solvents and other potentially toxic substances.

Mario Echazabal wanted to work there -- even after learning that he had hepatitis C, a chronic and sometimes fatal liver ailment. Chevron said no, citing the risk to Echazabal's health from toxic chemicals. Echazabal said he should be the judge of how much risk was too much -- and he took Chevron to court.

Yesterday, the Supreme Court heard oral arguments in the case, the latest in a series of crucial battles at the court over the Americans With Disabilities Act, the landmark 1990 statute designed to ensure equal access to jobs and public accommodations for chronically ill and handicapped people.

In recent years, the court has curbed the law's applicability to workplaces, holding earlier this term that the ADA, which defines disability as an impairment that limits "major life activities," does not protect workers with conditions, such as carpal-tunnel syndrome, that may hinder them on an assembly line but not in other tasks "central" to life.

A decision is pending in a separate case in which US Airways Group Inc. asserts that its seniority plan should trump the ADA when it comes to finding jobs to accommodate disabled employees.

Advocates for the disabled say a victory for Chevron in the Echazabal case would convert a law meant to bring people into the career mainstream into a license for demeaning corporate paternalism. They say that the law used careful language that intentionally authorized companies only to exclude workers whose disability might pose a threat to others' safety -- not to their own.

The issue is of particular concern for advocates of those infected with HIV, who say that employers might exclude HIV-positive people because they are susceptible to viral and bacterial infections.

"Chevron is asking for a rule that would do precisely" what Congress meant to prohibit, Echazabal's lawyer, Samuel R. Bagenstos, told the court.

But Chevron, supported by the Bush administration and by business groups such as the U.S. Chamber of Commerce, says it made a common-sense decision motivated as much by concern for Echazabal as by fear of getting sued if he got hurt. A person who would get sicker on the job isn't qualified for the job, the company maintains, adding that the Equal Employment Opportunity Commission has interpreted the ADA to permit what it did.

"If you recognize a hazard, you can't send the worker into the jaws of that hazard," Chevron's lawyer, Stephen M. Shapiro, told the court.

Justices questioned both sides sharply, but their remarks implied the court might lean to Chevron.

"Is it wrong in this society to say an employer should care about his employees?" Justice Anthony M. Kennedy asked Bagenstos. "You want the employer to take a position that's completely barbarous."

Bagenstos replied by citing a 1991 case in which the court said a company could not deny fertile women jobs because they might be exposed to lead, which is harmful to fetuses.

"That was a broad categorical rule," countered Justice Sandra Day O'Connor. "Here we're dealing with an individual."

As the argument progressed, it became clear that the peculiar facts of Echazabal's career would complicate the justices' decision.

He had worked for a Chevron subcontractor in the coker unit from 1972 to 1992, except for a three-year break. He first applied for a job with Chevron itself in 1992, and was initially hired, only to be turned down when a mandatory medical exam produced evidence of liver disease.

Echazabal continued to work for the subcontractor, apparently without harming his health, until 1995, when he applied again to Chevron. This time, the company not only rescinded a job offer based on his condition, it urged the subcontractor to bar him from the refinery.

Reduced to part-time work driving a school bus, Echazabal sued Chevron in early 1997. A federal district judge sided with Chevron, saying that assertions by Echazabal's doctors that the job would not endanger him were submitted too late in the case.

Echazabal appealed to the San Francisco-based U.S. Court of Appeals for the 9th Circuit, which sided with him, noting that the ADA speaks of an employer's right to exclude workers who might pose "a direct threat to . . . others," but not a threat to themselves.

Thus, several justices suggested, Echazabal may be a relatively rare individual who is seriously ill but capable of doing the job -- yet he is asking for a broad rule that might force employers to accept people for whom the health risks are great.

Bagenstos insisted there was little chance that anyone would try to commit what he called "suicide by employment."

"How sure can you be?" asked Justice John Paul Stevens, noting that people often seek dangerous work out of a need "to feed their families."

The case is Chevron v. Echazabal, No. 00-1406. A decision is expected by July.
 

© 2002 The Washington Post Company