Employers can no longer refuse deadly jobs

By Vin Suprynowicz
web posted May 29, 2000

Mario Echazabal, 54, found himself working at Chevron Corp.'s El Segundo refinery in Southern California a few years back, through a subcontractor.

Then Mr. Echazabal applied to work directly for Chevron.

That's when it came to the company's attention that Mr. Echazabal has been diagnosed with a chronic form of hepatitis -- a liver disease which could be exacerbated by exposure to the plant's chemicals.

So Chevron rejected Mr. Echazabal's job application, and instructed the subcontractor to remove him from the refinery.

Having lost his refinery job, Mr. Echazabal, needless to say, sued.

Last year, U.S. District Judge Lourdes G. Baird threw out all of Mr. Echazabal's claims, relying on guidelines promulgated by the federal Equal Employment Opportunity Commission, that employers may assert a "direct-threat" defense with regard to individuals applying for specific jobs which might pose a threat to their own health and safety.

After all, "A person who can't perform a job without being seriously injured isn't qualified for the job," as it was put -- with compelling common sense -- by Ann Reesman, general counsel for the Washington-based Equal Employment Advisory Council, an industry group which filed a brief in the case.

But the story doesn't end there. Oh no.

Mr. Echazabal's attorneys took their case to the Ninth Circuit Court of Appeals, which on May 23 handed down a doozy of a new ruling, which now becomes the law of the land in nine western states including Nevada.

Get this: When it enacted the Americans with Disabilities Act in 1990, "Congress concluded that disabled persons should be afforded the opportunity to decide for themselves what risks to undertake," wrote Judge Stephen Reinhardt for a unanimous three-judge panel.

And here I thought proponents of the law said it would merely require employers and retail stores to make a few "modest and sensible accommodations," like installing wheelchair ramps.

Instead, the ninth circuit has just ruled that -- while employers can still refuse to assign disabled employees to jobs in which they may pose a significant risk to the lives and safety of others (still no blind truck drivers or airline pilots -- but perhaps we should add, "so far") it's now illegal to refuse to give a disabled person a job assignment, even if you know the job may kill him.

If grand mal epileptics want to work as topmen building skyscrapers, if people suffering potentially fatal complications from pressurized air want to work in diving bells or scuba suits, employers are now instructed to say, "OK, honey; Congress wants you to have the opportunity to make that decision for yourself."

Now, if we forget for a moment that a job offer is a private contract in which the government should not be meddling in the first place, all of this might make a certain amount of sense -- since honoring the freedom of adults to make their own decisions and live with the consequences is basically a good thing -- if these same courts were routinely throwing out frivolous lawsuits which seek to blame someone else for a loved one's demise.

But are the courts routinely ruling these days that, "He chose to smoke cigarettes for 30 years despite the warning labels; your case against Big Tobacco is dismissed -- and you can also pay the defendants' legal fees"?

Just the opposite. The same judges who want to be patted on the back for their defense here of the liberty of disabled folk to take whatever risks they choose, are the ones who routinely allow suits to go forward in which farmers who fall off ladders are allowed to sue the ladder-makers for not putting written warnings on their products, indicating: "Do not rest foot of ladder on frozen cow manure when climbing onto roof at dawn; later in the day the stuff may melt."

Are we to imagine that hard-hearted citizen juries will now throw out the damage claims of young mothers who give birth to deformed children after being allowed to work around toxic chemicals, because the owner of the chemical factory (a fat man with a mustache, a cummerbund and a cigar) snarls on the witness stand, "Heck, we warned her; we told her 'It's your choice if you want to work around the pesticides, missy,' but she wanted the big bucks, and now it's her tough luck"?

That'll be the day.

And what about those EEOC guidelines, which authorize employers to defend themselves by arguing such job assignments pose a "direct threat" to an employee's life and safety?

In light of Alice-in-Wonderland court decision on May 23, Peggy Mastroianni, the EEOC's assistant legal counsel, told the Los Angeles Times: "This is an issue we've been looking at, and in light of the new decision we will give it more careful consideration."

Which might normally lead one to compare this march of the mindless bureaucrats to "the blind leading the blind."

Except that the judges would probably find that discriminatory .

Wouldn't they?

Vin Suprynowicz is assistant editorial page editor of the Las Vegas Review-Journal. His book, "Send in the Waco Killers" is available at 1-800-244-2224.

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