NO IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff Appellee,

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1 NO IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff Appellee, v. EXXON CORPORATION, Defendant Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS BRIEF AMICUS CURIAE OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL IN SUPPORT OF APPELLANT AND IN SUPPORT OF REVERSAL Ann Elizabeth Reesman* Corrie L. Fischel McGUINESS & WILLIAMS 1015 Fifteenth Street, N.W. Suite 1200 Washington, D.C (202) Attorneys for Amicus Curiae Equal Employment Advisory Council March 19, 1999 *Counsel of Record

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTEREST OF THE AMICUS CURIAE...1 STATEMENT OF THE CASE...4 SUMMARY OF THE ARGUMENT...6 ARGUMENT...7 I. THE ADA PERMITS A "BUSINESS NECESSITY" DEFENSE FOR ANY QUALIFICATION STANDARD OR SELECTION CRITERION, INCLUDING THOSE BASED PARTLY OR ENTIRELY ON SAFETY CONCERNS...7 A. The Statutory Language Unequivocally Establishes a "Business Necessity" Defense for Qualification Standards and Selection Criteria...7 B. The Legislative History Corroborates That the Business Necessity Defense Is Available and Applicable to Safety-Related Physical Criteria...8 C. The EEOC's Contention That Safety-Based Policies Must Meet The "Direct Threat" Test, and Cannot Be Justified Under a "Business Necessity" Standard, Is Illogical and Contrary to Law...12 D. Public Policy Dictates That Employers Be Permitted to Develop and Apply Adequate Safety Standards...17 II. THE COURT BELOW ERRED BY DEFERRING TO EEOC'S INTERPRETIVE GUIDANCE UNDER THE CHEVRON DOCTRINE...19 CONCLUSION...28

3 TABLE OF AUTHORITIES CASES Bragdon v. Abbott, 524 U.S. 624 (1998)...3, 21 Buckingham v. United States, 998 F.2d 735 (9th Cir. 1993)...3 Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997), cert. denied, 118 S. Ct. 871 (1998)...3 Central Midwest Interstate Low-Level Waste Commission v. Pena, 113 F.3d 1468 (7th Cir. 1997)...20 Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984)...19, 21, 22 Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995), cert. denied, 516 U.S (1996)...17 EEOC v. Amego, Inc., 110 F.3d 135 (1st Cir. 1997)...17 EEOC v. Exxon Corp., 967 F. Supp , 27 I.N.S. v. Cardoza Fonseca, 480 U.S. 421, (1987)...22 Jacks v. Crabtree, 114 F.3d 983 (9th Cir. 1997), cert. denied, 118 S. Ct (1998)...20 Massachusetts v. FDIC, 102 F.3d 615 (1st Cir. 1996)...20 ii

4 McDaniel v. Mississippi Baptist Medical Center, 74 F.3d 1238 (5th Cir. 1995)...3 McDaniel v. Mississippi Baptist Medical Ctr., 877 F. Supp. 321 (S.D. Miss. 1995), aff'd without op., 74 F.3d 1238 (5th Cir. 1995)...16 Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981)...15 Rogers v. International Marine Terminals, 87 F.3d 755 (5th Cir. 1996)...3 School Board of Nassau County v. Arline, 480 U.S. 273 (1987)...13 Sharpe v. American Telephone & Telegraph Co., 66 F.3d 1045 (9th Cir. 1995)...3 Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)...21 Southern Ute Indian Tribe v. AMOCO Production Co., 119 F.3d 816 (10th Cir. 1997), on reh'g en banc, adopted and modified on other grounds, 151 F.3d 1251 (1998), cert. granted, 119 S. Ct. 899 (1999)...20 Washington v. HCA Health Services, 152 F.3d 464 (5th Cir. 1998), petition for cert. filed, No , 67 U.S.L.W (Dec. 2, 1998)...20, 21 STATUTES Administrative Procedure Act, 5 U.S.C Americans with Disabilities Act (ADA or the Act), 42 U.S.C et seq., U.S.C , 7 42 U.S.C (b)(6)...6, 8, 22 iii

5 42 U.S.C (a)...3, 5, 6, 8 42 U.S.C (b)... 5, 12, 17, 22 Rehabilitation Act of 1973, 29 U.S.C. 701 et seq U.S.C LEGISLATIVE HISTORY H.R. Conf. Rep. No (1990)...10, 11 H.R. Rep. No , pt. 2 (1990), reprinted in 1990 U.S.C.C.A.N , 10, 11, 13 H.R. Rep. No , pt. 3 (1990), reprinted in 1990 U.S.C.C.A.N , 14 S. Rep. No (1989)...9, 10, 13 REGULATIONS 29 C.F.R. Part 1630 Appendix 29 C.F.R. App , C.F.R. App (b) and (c)...12, Fed. Reg (1991) Fed. Reg (1991) Fed. Reg (1991) Fed. Reg (1991) Fed. Reg (1991)...23, Fed. Reg (1991) Fed. Reg (1991) Fed. Reg (1991)...25, Fed. Reg (1991) Fed. Reg (1991)...24, 26 iv

6 The Equal Employment Advisory Council, pursuant to F.R.A.P. 29, respectfully submits this brief amicus curiae with the consent of all parties. This brief urges the Court to reverse the district court's summary judgment order holding that Defendant-Appellant Exxon Corporation may not use a business necessity defense. The brief thus supports the position of Defendant-Appellant Exxon Corporation before this Court. INTEREST OF THE AMICUS CURIAE The Equal Employment Advisory Council (EEAC or the Council) is a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of employment discrimination. Its membership includes over 300 major U.S. corporations. EEAC's directors and officers include many of industry's leading experts in the field of equal employment opportunity. Their combined experience gives the Council a unique depth of understanding of the practical, as well as legal, considerations relevant to the proper interpretation and application of equal employment policies and requirements. EEAC's members are firmly committed to the principles of nondiscrimination and equal employment opportunity. All of EEAC's members are employers subject to the Americans with Disabilities Act (ADA or the Act), 42 U.S.C et seq., and other

7 equal employment statutes and regulations. In addition, many are federal contractors subject to Section 503 of the Rehabilitation Act of 1973, 29 U.S.C EEAC s members include manufacturing companies, oil refineries, airlines, pharmaceutical manufacturers, railroads, health care providers, nuclear power companies, and emergency relief organizations. In each of these companies, there are positions in which the ability to meet certain established physical standards is critical to the performance of essential job functions. For the ADA to force employers to place or retain unqualified employees in some of these positions would jeopardize the safety and wellbeing of consumers, passengers, coworkers, the general public, and the environment. It likewise would place employers in a position where substandard safety precautions taken by an employee could have disastrous consequences resulting in public outrage, great expense, significant legal liability, and loss of consumer confidence and good will. In other positions, meeting necessary physical criteria is necessary for good job performance, affecting product quality, customer service, and the like. Accordingly, the issue presented in this appeal is extremely important to the nationwide constituency of employers that EEAC represents. The district court below ruled that an employer can never defend against an ADA 2

8 challenge to a safety-based qualification standard by showing that the standard is job related and consistent with business necessity pursuant to 42 U.S.C (a). This narrow view is contrary to the law and would impose on employers a burden never intended by Congress. Because of its interest in the application of the nation's civil rights laws, EEAC has filed over 440 briefs as amicus curiae in cases before the United States Supreme Court, the United States Circuit Courts of Appeals and various state supreme courts. As part of this amicus activity, EEAC has participated in cases in the Supreme Court, and in this and other Circuits, involving the proper interpretation of the Americans with Disabilities Act. 1 EEAC also has filed briefs in numerous cases involving the proper interpretation of the Rehabilitation Act of 1973, the predecessor to the ADA, and other laws prohibiting discrimination on the basis of disability. 2 Moreover, EEAC filed extensive comments in response to the Equal Employment Opportunity Commission's Notice of Proposed Rulemaking on 1 E.g., Bragdon v. Abbott, 524 U.S. 624 (1998); Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997) (alcoholism), cert. denied, 118 S. Ct. 871 (1998); Rogers v. International Marine Terminals, 87 F.3d 755 (5th Cir. 1996) (definition of disability"); McDaniel v. Mississippi Baptist Medical Ctr., 74 F.3d 1238 (5th Cir. 1995) (drug use). 2 E.g., Buckingham v. United States, 998 F.2d 735 (9th Cir. 1993) (Rehabilitation Act); Sharpe v. American Tel. & Tel. Co., 66 F.3d 1045 (9th Cir. 1995) (Washington state law). 3

9 its substantive regulations implementing the employment provisions of the ADA. 56 Fed. Reg (1991) (codified at 29 C.F.R. Part 1630). Thus, EEAC has an interest in, and a familiarity with, the issues and policy concerns presented to the Court in this case. Indeed, because of its significant experience in these matters, EEAC is uniquely situated to brief this Court on the importance of the issues beyond the immediate concerns of the parties to the case. STATEMENT OF THE CASE On March 24, 1989, the supertanker M/V EXXON VALDEZ ran aground on a reef in Prince William Sound, Alaska, dumping eleven million gallons of oil into the water. (R. Excerpts (5) at 10.) It was alleged, both in the courts and in the press, that Captain Joseph Hazelwood, an individual with alcoholism who had been through rehabilitation, was intoxicated at the time. (R. Excerpts (9) at ) The disaster made national headlines for months, and cost Exxon billions in clean-up costs, settlements, and the like. (R. Excerpts (5) at 9.) The Government also indicted Exxon on criminal negligence charges. (Id.) Shortly after the shipwreck, facing Government criticism, Exxon adopted a revised Statement of Policy Regarding Employee Alcohol and Drug Use. (R. Excerpts (9) at 184.) The Policy prohibits any employee 4

10 with a present or past substance abuse problem from holding one of a limited number of designated positions. EEOC v. Exxon Corp., 967 F. Supp. 208, The policy targets positions in which (1) there is a high exposure to catastrophic public, environmental, or employee incident; (2) the person in such position performs a key and direct role in the operating process where failure could cause a catastrophic incident; and (3) there is either no direct supervision or very limited supervision. Id. at 209. At the same time, the policy provides that No employee with alcohol or drug dependency will be terminated due to the request for help in overcoming that dependency or because of involvement in a rehabilitation effort. Id. at 209 n.1. The Equal Employment Opportunity Commission (EEOC) sued Exxon, claiming that the policy violates the ADA. Id. at 208. During the course of the litigation, the court below granted the EEOC s motion for summary judgment with respect to Exxon s attempt to defend its policy as being job related and consistent with business necessity under 42 U.S.C (a), holding that this defense was unavailable in safety-related cases, which instead were subject to the direct threat standard of 42 U.S.C (b). (R. Excerpts (2) at ) This appeal followed. 5

11 SUMMARY OF ARGUMENT Title I of the Americans with Disabilities Act, 42 U.S.C (ADA), which generally prohibits discrimination in employment on the basis of disability, provides explicitly that a job qualification standard that screens out an individual or individuals with disabilities may be defended on grounds of business necessity. 42 U.S.C (b)(6); 42 U.S.C (a). The legislative history corroborates that the defense is available and applicable to safety-related criteria. Accordingly, the EEOC s contention that safety-based policies must meet the direct threat test and cannot be justified under a business necessity standard is illogical and contrary to law. Moreover, public policy dictates that employers be permitted to develop and apply adequate safety standards. Finally, the Court below erred by deferring to EEOC's position in this case based on the Chevron doctrine. As this Court recently concluded, the Chevron doctrine does not apply to agency "interpretive rules" such as the interpretive guidance relied upon by EEOC and the district court in this case. Instead, the level of deference that should be accorded such rules depends on factors such as the circumstances of their promulgation, their consistency, the consideration that has gone into their formulation, and the nature of the agency's expertise. In short, the level of deference due interpretive rules is 6

12 based largely on the persuasiveness or merit of those rules. The EEOC guidance at issue in this case fares poorly under this test, and should be accorded little, if any, deference by the Court. ARGUMENT I. THE ADA PERMITS A BUSINESS NECESSITY DEFENSE FOR ANY QUALIFICATION STANDARD OR SELECTION CRITERION, INCLUDING THOSE BASED PARTLY OR ENTIRELY ON SAFETY CONCERNS A. The Statutory Language Unequivocally Establishes a Business Necessity Defense for Qualification Standards and Selection Criteria Title I of the Americans with Disabilities Act, 42 U.S.C (ADA or the Act), which prohibits discrimination in employment on the basis of disability, twice provides explicitly for a business necessity defense. First, Section 102(b) of the ADA, which defines the term discriminate as used in the general prohibition of Section 102(a), states in relevant part that: (b) CONSTRUCTION-As used in subsection (a), the term discriminate includes (6) using qualification standards, employment 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 jobrelated for the position in question and is consistent with business necessity. 7

13 42 U.S.C (b)(6) (emphasis added). Thus, the statutory provision raising the possibility that a qualification standard or selection criterion might discriminate negates that possibility where the standard or criterion is shown to be job related for the position in question and is consistent with business necessity. Id. Second, the statutory language provides a defense in much the same terms, stating: IN GENERAL It may be a defense to a charge of discrimination under this Act 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, as required under this title. 42 U.S.C (a) (emphasis added). The inclusion of this defense makes it doubly clear that qualification standards or selection criteria that are job related and consistent with business necessity are permissible under the ADA even if they screen out individuals with disabilities. B. The Legislative History Corroborates That the Business Necessity Defense Is Available and Applicable to Safety-Related Physical Criteria Where the language of a statute is clear, there is no need to refer to the legislative history. Nevertheless, the legislative history of the ADA 8

14 confirms the availability of the business necessity defense for both qualification standards and selection criteria, including those dealing with physical criteria tied to safe performance of the job. Both Congressional committees with direct authority over this part of the legislation, the Senate Committee on Labor and Human Resources, and the House Committee on Education and Labor, made this point. Under this legislation an employer may still devise physical and other job criteria and tests for a job so long as the criteria or tests are job-related and consistent with business necessity. Thus, for example, an employer can adopt a physical criterion that an applicant be able to lift fifty pounds, if that ability is necessary to an individual s ability to perform the essential function in question. S. Rep. No , at 27 (1989). See also H.R. Rep. No , pt. 2, at 56 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 338. Both Committees explained this provision as a requirement that job criteria actually measure ability required by the job to guard against employment decisions based on stereotypes and misconceptions about the abilities, or more correctly, the inabilities, of persons with disabilities.... S. Rep. No , at 37; H.R. Rep. No , pt.2, at 71, reprinted in 1990 U.S.C.C.A.N. at 353. They explained: If a person with a disability applies for a job and meets all selection criteria except one that he or she cannot meet because of a disability, the criteria must concern an essential, non marginal aspect of the job, and be carefully tailored to measure 9

15 the person s actual ability to do an essential function of the job. If the criteria meets this test, it is nondiscriminatory on its face and it is otherwise lawful under the legislation. S. Rep. No , at 37-38; H.R. Rep. No , pt. 2, at 56, reprinted in 1990 U.S.C.C.A.N. at See also, H.R. Rep. No , pt. 3, at 32 (1990), reprinted in 1990 U.S.C.C.A.N. 445, Importantly, the ADA s legislative history also confirms that Congress intended for safety-based medical standards to be evaluated under the business necessity rule. As the House Committee on the Judiciary stated, The Committee does not intend for this Act to override any legitimate medical standards established by federal, state or local law, or by employers for applicants for safety or security sensitive positions, if the medical standards are consistent with [the ADA]. H.R. Rep. No , pt. 3, at 43, reprinted in 1990 U.S.C.C.A.N. at 466. See also H.R. Rep. No , pt. 2, at 74, reprinted in 1990 U.S.C.C.A.N. at 357; H.R. Conf. Rep. No , at Indeed, the House Labor Committee focused specifically on safety-sensitive positions in explaining when medical examinations for employees might be job related and consistent with business necessity, stating: 3 The explanation continues that the criteria may not be used to exclude an applicant with a disability if the criteria can be satisfied by the applicant with a reasonable accommodation. A reasonable accommodation may entail adopting an alternative, 10

16 Section 102(c)(4) prohibits medical exams of employees unless job related and consistent with business necessity. Certain jobs require periodic physicals in order to determine fitness for duty. For example, Federal safety regulations require bus and truck drivers to have a medical exam at least biennially. In certain industries, such as air transportation, physical qualifications for some employees are critical. Those employees, for example, pilots, may have to meet medical standards established by Federal, State or local law or regulation, or otherwise fulfill requirements for obtaining a medical certificate, as a prerequisite for employment. In other instances, because a particular job function may have a significant impact on public safety, e.g. flight attendants, an employee s state of health is important in establishing job qualifications, even though a medical certificate might not be required by law. H.R. Rep. No , pt. 2, at 74, reprinted in 1990 U.S.C.C.A.N. at Similarly, the Conference Report explains: [I]n certain industries, such as air transportation, applicants for security and safety related positions are normally chosen on the basis of many competitive factors, some of which are identified as a result of post-offer pre-employment medical examinations. Thus, after the employer receives the results of the post-offer medical examination for applicants for safety or security sensitive positions, only those applicants who meet the employer s criteria for the job must receive confirmed offers of employment, so long as the employer does not use those results of the exam to screen out qualified disabled individuals on the basis of disability. H.R. Conf. Rep. No , at 59 (emphasis added). Thus, the legislative history supports the appropriateness of the business necessity defense to respond to a challenge to a safety-based physical standard. less discriminatory criterion. The Committees, did not, however, suggest any 11

17 C. The EEOC s Contention That Safety-Based Policies Must Meet The Direct Threat Test, and Cannot Be Justified Under a Business Necessity Standard, Is Illogical and Contrary to Law The EEOC takes the position that the only way a safety-related qualification standard or selection criterion can be shown to be job related and consistent with business necessity is by showing that the individual poses a direct threat to the health and safety of others. 29 C.F.R. App (b) and (c); (R. Excerpts (3) at 908). Not only is this position contrary to the unambiguous statutory language discussed above, but it defies logic as well. The Commission s interpretation ostensibly is based on Section 103(b) of the ADA, which directly follows Section 103(a) s general discussion of qualification standards and the business necessity defense. Section 103(b) then provides that [t]he 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 (b). Thus, direct threat is a subset of the more general qualification standards provision, in that one possible qualification standard is that the individual not pose a direct threat. The Government s construction standards for how such a criterion could or should be identified or evaluated. 12

18 improperly reverses the two sections of Section 103 so that the direct threat analysis predominates over the business necessity provision, in direct conflict with the statutory language. The legislative history reflects the separate and independent genesis and import of these two provisions. When the Senate Labor Committee considered the bill that became the ADA, the qualification standards provision appeared in its present form, while the direct threat provision addressed only an individual with a currently contagious disease or infection. S. Rep. No at 40. The Committee discussed the two separately. Far from suggesting that all safety-related qualification standards would be subjected to a direct threat analysis, the Committee explained that the direct threat provision then was intended to codify the Supreme Court s requirement in School Board of Nassau County v. Arline, 480 U.S. 273 (1987), of an individualized showing of significant risk before an individual with a contagious disease can be screened out of a job. Id. The House Committee on Education and Labor took the same approach. H.R. Rep. No , pt. 2, at 76, reprinted in 1990 U.S.C.C.A.N. at The House Committee on the Judiciary likewise treated the direct threat provision as a subset of the broader qualification standards 13

19 provision. First, the Committee pointed out that employers may set physical criteria as qualification standards so long as they are job related and consistent with business necessity. H.R. Rep. No , pt. 3, at 45, reprinted in 1990 U.S.C.C.A.N. at 368. The Committee used a 50-lb lifting restriction a physical criterion grounded, at least in part, in safety as an example. While the Committee then expanded the direct threat provision to cover all individuals with disabilities, it retained its structure as merely one type of qualification standard. Thus, after discussing the general qualification standards, and using a physical criterion as an example, the Committee went on to explain direct threat and summarized, If the applicant is otherwise qualified for the job, he or she cannot be disqualified on the basis of a physical or mental condition unless the employer can demonstrate that the applicant s disability poses a direct threat to others in the workplace." Id. at 45-46, reprinted in 1990 U.S.C.C.A.N. at 469 (emphasis added). Accordingly, both the statutory language and the legislative history support the more logical construction that direct threat is merely one type of qualification standard, not an overarching requirement applicable to all safety-related medical standards. Generally applicable physical criteria are subject to a business necessity analysis based on the functions of the 14

20 particular job. 4 At the same time, an individual who meets all of the employer s qualification standards including physical criteria for the job still may be excluded based on a particular condition, but only if placing the person in the job would present a direct threat to health and safety. Thus, contrary to the EEOC s argument that Exxon s construction makes Section 103(b) superfluous, the result is exactly the opposite. The EEOC s argument would make Section 103(a) nearly superfluous, by requiring that all safety-related medical standards go through the direct threat analysis and virtually eliminating the business necessity defense. The EEOC may argue that the qualification standard at issue here Exxon s policy of preventing substance abusers from holding designated safety-sensitive positions is subject to a direct threat standard because it excludes a particular group of individuals, substance abusers. Such a construction, however, would preclude the use of any physical criteria, and thus conflicts with the statute. Vision standards undoubtedly will screen out individuals with severe vision impairments, yet the statute permits a vision standard that is job related and consistent with business necessity. As the Report of the House Committee on the Judiciary reveals, a 50 lb. lifting standard is permitted if job related and consistent with business necessity 4 This analysis likewise is consistent with that used by this Court under the 15

21 even though it will remove from consideration individuals with serious lower back impairments. Arguably, some physical criteria standards could be solely performance-based, with no safety components, which would remove them from the category for which the EEOC requires a direct threat analysis. See McDaniel v. Mississippi Baptist Medical Ctr., 877 F. Supp. 321 (S.D. Miss. 1995) (holding that employer s sobriety policy was valid business qualification for position of marketing representative for drug treatment center, since noncompliance affected, at least from public relations perspective, ability to perform essential function of interviewing prospective patients), aff d without op., 74 F.3d 1238 (5th Cir. 1995). The EEOC s construction thus would subject standards created in whole or in part for safety based reasons to a more difficult standard than those based on job performance or other reasons. While the quality of job performance admittedly is important, it seems illogical to require higher proof for safety standards. 5 Cf. EEOC v. Amego, Inc., 110 F.3d 135 (1st Cir. 1997) Rehabilitation Act of 1973, 29 U.S.C. 701 et seq. See Prewitt v. United States Postal Service, 662 F.2d 292, 310 (5th Cir. 1981). 5 Indeed, given that the "direct threat" provision extends only to "the health and safety of other individuals in the workplace," 42 U.S.C (b), the EEOC's interpretation would seem to permit Exxon to justify its policy as "business necessity" if it were adopted only for environmental or liability 16

22 (rejecting the EEOC s position that direct threat defense of safety requirement is part of employer s burden of proof, noting that [t]he position argued by the EEOC would lead to the anomalous result that there is a lesser burden or proving qualifications on a plaintiff where the job involves the care of others, and necessarily entails risk to others, than when the job does not. ). 6 D. Public Policy Dictates That Employers Be Permitted To Develop and Apply Adequate Safety Standards It is difficult to believe that Congress intended to discourage the development of safety standards in the workplace through passage of the ADA. A ruling that employers cannot set qualification standards that are job related and consistent with business necessity to evaluate the qualifications of particular individuals for particular jobs could achieve just such a result. It is important that businesses and industries collectively attempt to selfregulate in the interest of public safety. Businesses may not, however, continue to make the effort to participate in self-regulation if such efforts will actually result in legal liability. Punishing employers who adopt reasons but require the stricter approach once the word safety is mentioned. This seems to be backwards. 6 Notably, when this Court ruled in Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995), cert. denied, 516 U.S (1996), that an individual with insulin-dependent diabetes was not otherwise qualified for a position as a city bus driver because his disability posed a substantial risk as a matter of law, the Court did not require proof on an individualized basis. 17

23 legitimate safety-related criteria will create a disincentive to maintain needed safety standards. Public policy dictates that employers be permitted to develop and apply safety standards to determine if an employee is qualified. As this case demonstrates, employers face bad publicity if they are perceived as endangering the safety of the general public. In addition, both private citizens and the government can sue employers if an employer s actions compromise the safety of the public, or even natural resources. Accordingly, employers must take preventive measures to ensure that employees are able to perform the essential functions of their jobs in a safe manner. An employer that fails to do so will have a difficult time convincing a jury that it should not be accountable for damages because it was fulfilling its obligation under the ADA. While compliance with the ADA, as a federal law, may in theory preempt a state tort law claim, once an accident has occurred, it will be difficult for an employer to show that it could not tell at the time that imminent danger was possible when standards, designed to show what criteria are necessary, were available. Reasonableness is the guiding principle of the ADA. It is not reasonable to forbid an employer from relying on standards designed to protect the safety of the general public. Public policy warrants an 18

24 interpretation of the ADA that reconciles the reasons why the ADA was passed: to promote the employment of qualified individuals with disabilities; to ensure that they are qualified based on sound business necessity rather than myth or stereotype; and to protect the safety of the general public. II. THE COURT BELOW ERRED BY DEFERRING TO EEOC'S INTERPRETIVE GUIDANCE UNDER THE CHEVRON DOCTRINE In its decision below, the district court relied on the so-called Chevron doctrine to sustain EEOC's position in this case. (R. Excerpts (2) at ): R. Excerpts (3) at ). In this respect, the lower court committed clear error that should be reversed by the Court. In Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, (1984), the Supreme Court announced the now well-settled standard for reviewing agency regulations: First, always, is the question of whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the courts is whether the agency's answer is based on a permissible construction of the statute. 19

25 Consistent with the majority of sister circuits, however, this Court recently made clear that the full Chevron analysis does not apply to EEOC's interpretive guidance, which consists of "interpretive rules" not subject to the strictures of the rulemaking procedures of the Administrative Procedure Act, 5 U.S.C Washington v. HCA Health Services, 152 F.3d 464, 469 (5th Cir. 1998), petition for cert. filed, No , 67 U.S.L.W (Dec. 2, 1998). 7 Instead, this Court held that the deference due such rules varies along a sliding scale depending upon several factors, such as "the circumstances of their promulgation, the consistency with which the agency has adhered to the position announced, the evident consideration which has gone into its formulation, and the nature of the agency's expertise." Washington, 152 F.3d at 470. In short, the level of deference due interpretive guidance is based largely on the persuasiveness or merit of that guidance. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Bragdon v. Abbott, 118 S. Ct. 2196, 2207 (1998). 7 See also Cent. Midwest Interstate Low-Level Waste Comm'n v. Pena, 113 F.3d 1468, 1473 (7th Cir. 1997) ("we do not apply Chevron's "rubber stamp" to interpretive rules"); Jacks v. Crabtree, 114 F.3d 983, 985 n.1 (9th Cir. 1997) (Chevron applies to legislative rules, not policy guidance), cert. denied, 118 S. Ct (1998); Southern Ute Indian Tribe v. AMOCO Prod. Co., 119 F.3d 816, 833 (10th Cir. 1997), on reh'g en banc, adopted and modified on other grounds, 151 F.3d 1251 (1998), cert. granted, 119 S. Ct. 899 (1999); Massachusetts v. FDIC, 102 F.3d 615, 621 (1st Cir. 1996) (policy pronouncements less formal than legislative rules "are not accorded full Chevron deference"); Kenneth Davis & Richard Pierce, Jr., Administrative Law Treatise 3.5 at 120 (3d ed. 1994) ("Courts... should not give binding effect to interpretive rules or statements of policy under Chevron"). 20

26 We note, however, that the Court's Washington decision did not alter the first step in any deference analysis. Before proceeding to consider the level of deference to accord an agency rule any agency rule the court must first look to whether any deference should be accorded (i.e. whether the statute is silent or ambiguous). Washington, 152 F.3d at 469. "First, always, is the question of whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at Moreover, the judiciary's duty in this regard is not discretionary. "If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Id. at 843 n.9. See, also, I.N.S. v. Cardoza Fonseca, 480 U.S. 421, (1987). Thus, as a preliminary matter, we point out that EEOC's interpretive guidance at issue in this case does not even warrant a discussion regarding the level of deference, as it does not survive this threshold first step. As demonstrated above, the plain language of the statute and its legislative history clearly state that selection criteria that are job-related and consistent with business necessity shall not be construed as discriminatory, even where 21

27 they tend to screen out individuals with disabilities. 42 U.S.C (b), 12113(a). Thus, the statute is not ambiguous but clearly permits any acrossthe-board selection criteria that are job-related and consistent with business necessity. That the statute presents a separate and distinct defense that "'qualification standards' may include 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 (b), does not render the clear statutory meaning of discrimination ambiguous. Because the statute is unambiguous on this question, there is no need to proceed to a determination regarding the level of deference due the agency on this point. Nevertheless, assuming arguendo that the Congressional intent was less than clear, the EEOC interpretive rule at issue here would command little, if any, deference under the Washington test. First, the circumstances of this rules promulgation are particularly dubious. In February 1991, when EEOC issued its proposed ADA rules, and first published its guidance, the only reference to safety-related qualifications was contained in the definitional section of the regulations as follows: Qualifications standards means the personal and professional attributes including the skill, experience, education, physical, medical, safety and other requirements established by a covered entity as requirements which an individual must meet in order 22

28 to be eligible for the position held or desired. Qualification standards may include a requirement that an individual not pose a direct threat to the health or safety of the individual or others. 56 Fed. Reg (1991). The proposed regulations further provided, consistent with the statute, that an employer lawfully could maintain such qualification standards if they were job-related and consistent with business necessity. 56 Fed. Reg. 8589, 8590 (1991). Nowhere in the proposed regulations, or in the interpretive guidance as originally drafted, was there any indication that safety-related job qualifications would be subject to a different substantive legal standard. See generally 56 Fed. Reg (1991) (proposed rules); 56 Fed. Reg (1991) (interpretive guidance). Indeed, the original interpretive guidance did not even mention safety-related job qualifications, let alone include the current provision that substantively alters the legal standard for such qualifications. 56 Fed. Reg (1991). It was not until EEOC published its final regulations, that the agency slipped this "direct threat" requirement into its interpretive guidance. See 56 Fed. Reg (1991). Thus, the circumstances of the promulgation of the particular rule at issue in this case clearly are questionable. Based on these same circumstances, it also becomes evident that the agency has not consistently maintained its present interpretation of the 23

29 Act the second Washington deference factor. Indeed, the agency's very first interpretation of the provisions at issue here did not in any way distinguish between the legal standards that must be satisfied in order to maintain safety-related job qualifications and other work-related qualifications. See 56 Fed. Reg (1991). 8 Moreover, the agency's present interpretive guidance is not even consistent on this point. Compare 29 C.F.R. App (the job-related and consistent with business necessity standard "is applicable to all types of selection criteria, including safety requirements, vision or hearing requirements, walking requirements, lifting requirements, and employment tests") with 29 C.F.R. App (b) and (c) (safety requirements must meet the "direct threat" standard). It is with respect to the third Washington factor the evident consideration which has gone into its formulation that EEOC's interpretive rule most egregiously fails. In truth, apparently no consideration went into the formulation of this particular rule. As noted above, the interpretive rule applying the "direct threat" standard to safety-related job qualifications was not present in form or substance in either the proposed regulations or interpretive guidance 8 EEOC characterized the original interpretive guidance as "represent[ing] the Commission's interpretation of the issues discussed..." 56 Fed. Reg (1991). 24

30 originally published by the agency. See generally 56 Fed. Reg (1991). On the contrary, the proposed regulations and original guidance gave every indication that all job-related qualifications including safetyrelated qualifications would be treated identically. See, e.g., 56 Fed. Reg It was not until the agency published its final guidance, however, that it announced that it would apply a separate and distinct legal standard the direct threat test to job qualifications involving safety. Although this new interpretation constituted, in essence, a new substantive rule of law, and represented a significant departure from prior policy, EEOC provided no discussion of, or reasoning for, the new rule. See 56 Fed. Reg (1991) (Analysis of Comments and Revisions to Section Defenses). Indeed, the agency's Section-by-Section Analysis of Comments and Revisions did not even note that this particular substantive change in policy had even been made. See id. To say the least, this is odd considering that the agency devoted six lines of text to explain a single technical change to Section See 56 Fed. Reg (1991) (explaining that the agency changed the phrase "individual or class of individuals with disabilities" to individual with a disability or class of individuals with a disabilities"). The actual interpretive guidance similarly provides no reasoning for the change. Moreover, the agency cited no support whatsoever for the new 25

31 interpretation of the Act. See 56 Fed. Reg (1991). This is in stark contrast to EEOC's conflicting interpretive rule that the job-related/business necessity provision "is applicable to all types of selection criteria, including safety requirements, vision or hearing requirements, walking requirements, lifting requirements, and employment tests." 56 Fed. Reg (1991). There, the agency cited three separate Congressional reports to support its conclusion. Id. In short, apparently no real consideration went into the formulation of the interpretive rule at issue in this case. Finally, the fourth Washington factor also weighs against deference in this case. While EEOC may possess expertise with regard to disability issues, it has little if any experience or expertise with regard to workplace safety. Indeed, Congress has created an entirely separate agency OSHA to deal with such matters. In any event, EEOC essentially has admitted that it has no special expertise in business matters. Cf. 29 C.F.R. App ("it is not the intent of [the agency] to second guess an employer's business judgment with respect to production standards. Consequently production standards will generally not be subject to challenge under this provision.") As a result, EEOC is hardly well-situated to sit in judgment on the relative importance of safety-related, and non-safety-related, job qualifications. Cf. EEOC v. Amego, Inc., 110 F.3d 135 (1st Cir. 1997) (EEOC's interpretive 26

32 rule creates the anomaly of a stricter standard for establishing safety-related job qualifications than other job qualifications). Because the EEOC interpretive rule at issue here fares poorly under all of the Washington factors, the Court should accord it little, if any, deference in this case. CONCLUSION For the foregoing reasons, the amicus curiae Equal Employment Advisory Council respectfully submits that the decision below should be reversed. Respectfully submitted, Ann Elizabeth Reesman* Corrie L. Fischel McGUINESS & WILLIAMS 1015 Fifteenth Street, N.W. Suite 1200 Washington, D.C (202) Attorneys for Amicus Curiae 27

33 Equal Employment Advisory Council March 19, 1999 *Counsel of Record 28

34 Ann Reesman M:\1013\1248\brief\EEOC v Exxon brief.doc