EQUAL EMPLOYMENT OPPORTUNITY
Before HIGGINBOTHAM and SMITH, Circuit Judges, and DUPLANTIER,District Judge. (1)
PATRICK E. HIGGINBOTHAM, Circuit Judge:
In this appeal under the Americans with Disabilities Act("ADA"), we review the measure of a safety-based qualificationstandard defended as a business necessity. The EEOC moved forpartial summary judgment arguing that the only defense availableunder the ADA when an employer imposes a safety qualificationstandard is for the employer to prove that the individual poses a"direct threat." The district court granted the motion. We arenot persuaded by the position of the EEOC and accepted by thedistrict court. Rather, we find that applying direct threat onlyin cases in which the employer imposes a special safety standard inan individual case offers a more coherent meaning of the statuteand of the role of safety under it. We REVERSE.
The EEOC brought this suit on behalf of certain Exxonemployees, alleging that Exxon's substance abuse policy violatesthe ADA. The policy permanently removes any employee who hasundergone treatment for substance abuse from certain safety-sensitive, little-supervised positions. The policy affects aboutten percent of Exxon's positions. Exxon adopted the policy inresponse to the 1989 Exxon Valdez incident, in which one of itstankers ran aground, causing environmental injury and resulting inbillions of dollars of liability for Exxon. Concerns arose thatthe tanker's chief officer's alcoholism, which had previously beentreated, might have contributed to the accident.
The EEOC claims that pursuant to the policy, Exxon demotedemployees who underwent treatment several decades ago. Exxonjustifies its policy as promoting safety in jobs in which it isunable to oversee employees to ensure they are not relapsing intosubstance abuse, as well as furthering environmental protection,the prevention of future tort liability, and good corporatecitizenship. Before trial, the EEOC moved for partial summaryjudgment on the grounds that Exxon must defend its policy under the"direct threat" provision of the ADA. The magistrate judgerecommended summary judgment for the EEOC, and the district courtadopted that recommendation but acknowledged the difficulty andcertified the issue for appeal. We granted leave to Exxon toappeal the interlocutory order under 28 U.S.C. § 1292(b).
The ADA prohibits an employer from using qualificationstandards that screen out a disabled individual or class. See 42U.S.C. § 12112(b)(6) (1999). An employer may raise certainaffirmative defenses to such a charge. (2) The relevant portions ofthe statute's "Defenses" provision read:
(a) In general
It may be a defense to a charge of discrimination underthis chapter that an alleged application of qualificationstandards . . . that screen out or tend to screen out orotherwise deny a job or benefit to an individual with adisability has been shown to be job-related andconsistent with business necessity. . . .
(b) Qualification standards
The term "qualification standards" may include arequirement that an individual shall not pose a directthreat to the health or safety of other individuals inthe workplace.
§ 12113. Safety-based qualification standards are an acceptedground for a defense; the question before us is whether an employermay defend the questioned personnel decision as based on a standardjustified as a business necessity or must demonstrate a "directthreat" in each circumstance. (3)
Exxon contends that because the statute does not explicitlymandate the direct threat test for every safety-based qualificationstandard, it may defend its policy under either section of theprovision. The EEOC argues that the direct threat test must beused in every case where a safety-based requirement is at issue. The EEOC has issued Interpretive Guidance, which generally requiresemployers to meet the direct threat test:
With regard to safety requirements that screen out ortend to screen out an individual with a disability or aclass of individuals with disabilities, an employer mustdemonstrate that the requirement, as applied to theindividual, satisfies the "direct threat" standard in§ 1630.2(r) in order to show that the requirement is job-related and consistent with business necessity.
29 C.F.R. pt. 1630, App. § 1630.15(b) & (c). This language, notbeing part of the regulation, is not entitled to Chevron deference. Rather, we will give it due deference to the extent it isreasonable and harmonizes with the plain language of the statute,its origin and purposes. Cf. Fort Hood Barbers Ass'n v. Herman ,137 F.3d 302, 307 (5th Cir. 1998) (construing deference appropriatefor an interpretive regulation).
Our review begins with the language of the provision itself. Two aspects of the provision indicate that safety requirements arenot exclusively cabined into the direct threat test. First,§ 12113(a) speaks of qualification standards that "screen out ortend to screen out an individual." This language suggests ageneral standard applicable to all employees. In contrast, thedirect threat provision of § 12113(b), phrased in the permissive,allows a requirement that the individual not pose a threat tohealth or safety. The different approaches suggest that businessnecessity applies to across-the-board rules, while direct threataddresses a standard imposed on a particular individual.
This reading is confirmed by the language in § 12113(b)stating that the individual shall not pose a direct threat to"others in the workplace." This language appears odd, if we are toaccept the EEOC's interpretation that all safety-relatedqualification standards are addressed by this provision. Manyemployees who pose safety risks, such as a driver unqualified totransport hazardous substances, would not pose a particular threatto others in their workplaces.
The origin of the workplace language sheds light on whatproblem § 12113(b) seeks to remedy. The direct threat provisionderives from School Board of Nassau County v. Arline , 480 U.S. 273(1987), in which the Supreme Court construed the ADA's predecessorRehabilitation Act. See H.R. Rep. No. 101-485(II), at 56-57 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 338-39. In Arline , theplaintiff, a teacher battling tuberculosis, was fired afterconcerns arose that her students would become infected. Theteacher met all of the established qualification standards relatingto the performance of her job. The Court held that the plaintiffwas not qualified for her position because of her illness only ifshe posed a significant risk to others in the workplace. See Arline , 480 U.S. at 276, 284, 287.
When Congress codified Arline in the ADA, it kept theworkplace language but expanded coverage to individuals withdisabilities other than contagious illnesses. The legislativehistory's examples of direct threat, however -- contagiousillnesses, mental disabilities, and mental illnesses -- continuethe focus on situations in which an employer might impose a safetystandard in an individual's particular case separate from thegeneral qualification standards required for the position. See H.R. Rep. No. 101-485(III), at 45 (1990), reprinted in 1990U.S.C.C.A.N. 445, 468-69 & n.37.
Neither the statute, the legislative history, nor Arline discusses the distinct situation in which a pre-existing safety-based qualification standard applies across-the-board for theposition, such as a requirement that a bus driver meet certainsight requirements. Such requirements arise in safety-sensitivejobs such as driving or working with hazardous substances. See,e.g. , Albertsons, Inc. v. Kirkingburg , 1999 WL 407456, at *1 (U.S.1999) (company imposed vision requirements on truck drivers). Incases where an employer has developed a general safety requirementfor a position, safety is a qualification standard no differentfrom other requirements defended under the ADA's business necessityprovision. See 29 C.F.R. § 1630.2(q). Physical requirements, forexample, such as lifting, walking or seeing, are acceptabledefenses as long as the requirements are job-related and consistentwith business necessity. See 29 C.F.R. pt. 1630, App. § 1630.10. Requirements that may be valid as a business necessity must be"established" by the employer to be eligible for the position. See 29 C.F.R. § 1630.2(q).
Similarly, the business necessity defense under Title VII andthe ADEA has applied to safety-based qualification standards whichtend to screen out women or certain age groups. See Smith v. Cityof Des Moines , 99 F.3d 1466, 1471 (8th Cir. 1996) (applyingbusiness necessity standard in an ADEA suit regarding safetystandards for firefighters); Levin v. Delta Air Lines, Inc. , 730F.2d 994, 997 (5th Cir. 1984) (applying business necessity in aTitle VII challenge to safety requirements affecting pregnantwomen). In these areas of employment discrimination law, thestrength of the defense again turns on whether the employer canjustify the safety standard as a general rule. See Smith , 99 F.3dat 1472-73 (examining validity of qualification standard ratherthan experts' opinions as to plaintiff's general fitness forposition).
While no court has as yet addressed the question we answertoday, several trends in ADA case law indicate that the directthreat test is not deployed where an employer uses a generalsafety-based qualification standard applicable across-the-board. (4) See, e.g. , Jeffrey A. Van Detta, "'Typhoid Mary' Meets the ADA: ACase Study of the 'Direct Threat' Standard Under the Americans WithDisabilities Act," 22 Harv. J.L. Pub. Pol'y 849, 935 (1999) (notingtendency of courts to ignore Arline in cases relating totransportation jobs). Several cases have held that an employee is"not qualified," without discussing direct threat, if the employeecannot meet an established safety requirement for the position. See, e.g. , Jones v. Kerrville State Hosp. , 142 F.3d 263, 265-66(5th Cir. 1998) (holding that nurse who was unable to completetraining on safe subduing of patients was not qualified); Newman v.Chevron U.S.A. , 979 F. Supp. 1085, 1090-91 (S.D. Tex. 1997)(gasoline truck driver with post traumatic stress disorder notqualified). Because the "otherwise qualified" analysis and thebusiness necessity defense each involves whether the individual canperform the "essential functions" of the job, see 42 U.S.C. §12111(8); 29 C.F.R. pt. 1630, App. § 1630.10, these courts'approach mirrors the business necessity standard.
We have found nothing in the statutory language, legislativehistory or case law that persuades that the direct threat provisionaddresses safety-based qualification standards in cases where anemployer has developed a standard applicable to all employees of agiven class. We hold that an employer need not proceed under thedirect threat provision of § 12113(b) in such cases but rather maydefend the standard as a business necessity. The direct threattest applies in cases in which an employer responds to anindividual employee's supposed risk that is not addressed by anexisting qualification standard.
In so holding, we note that direct threat and businessnecessity do not present hurdles that comparatively are inevitablyhigher or lower but rather require different types of proof. Direct threat focuses on the individual employee, examining the specific risk posed by the employee's disability. See 29 C.F.R. §1630.2(r). In contrast, business necessity addresses whether thequalification standard can be justified as an across-the-boardrequirement. Either way, the proofs will ensure that the risks arereal and not the product of stereotypical assumptions.
In evaluating whether the risks addressed by a safety-basedqualification standard constitute a business necessity, the courtshould take into account the magnitude of possible harm as well asthe probability of occurrence. The acceptable probability of anincident will vary with the potential hazard posed by theparticular position: a probability that might be tolerable in anordinary job might be intolerable for a position involving atomicreactors, for example. In short, the probability of the occurrenceis discounted by the magnitude of its consequences. In Exxon'scase, the court should thus consider the magnitude of a failure inassessing whether the rate of recidivism among recovering substanceabusers constitutes a safety risk sufficient for businessnecessity.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
1. District Judge of the Eastern District of Louisiana, sittingby designation.
2. Whether the employees on whose behalf the EEOC is suing are"disabled" within the meaning of the ADA is not before us.
3. Exxon also cites its concern for the environment as a groundfor the policy. We find this justification subsumed in the safetymotivation. Exxon further claims that tort liability should be aseparate basis for a business necessity defense. Exxon facedmassive tort liability as a result of the Valdez spill and claimsthat should another incident occur, it would be subject toheightened damages, including punitive and criminal sanctions. In International Union v. Johnson Controls, Inc. , the Supreme Courtnoted that tort liability might be a valid defense if the addedcosts would threaten the survival of the employer's business. 499U.S. 187, 210-11 (1991).
4. The Supreme Court also recently questioned the EEOC's claimfor exclusive use of the direct threat standard. In dicta in Albertsons, Inc. v. Kirkingburg , Justice Souter questioned thesoundness of the EEOC's position requiring a showing of "directthreat" to justify a safety-related qualification standard. 1999WL 407456, at *7 n.15 (U.S. 1999). At issue in Albertsons was atruck driver with monocular vision who failed his employer's visionstandards. The EEOC argued that the employer would have to proceedunder the direct threat standard. The Court, however, decided thecase on other grounds. See Albertsons , 1999 WL at *1, *7.