ADA’s Direct Threat Defense

I. Introduction

 For over eighty years the federal government has taken increasingly aggressive steps to
support the disabled by providing rehabilitative services and enacting legislation to reduce 
discriminatory practices. 1 While significant progress has been made, a series of federal appellate
decisions have set back these advancements by finding that the Americans with Disabilities Act
of 1990 (ADA) 2 permits employers to exclude otherwise qualified disabled individuals from
positions solely because placement in the job would pose a risk to their own health or safety. 3
Some courts have gone even further by placing the burden on the disabled to prove that such
safety concerns do not make them unqualified for the position they seek. 4 A recent case,
Echazabal v. Chevron, USA, Inc., handed down by the Court of Appeals for the Ninth Circuit
signaled a giant step toward reversing this trend by requiring employers to ignore self-risk
concerns and permit the disabled to judge for themselves the relative risks of an employment
opportunity without outside interference.

 5 The Echazabal court specifically held that an employer may not “shut disabled individuals
out of jobs on the ground that, by working in the jobs at issue, they may put their own health or
safety at risk.” 6 Further, the court squarely placed the burden of proof on defendants whenever
safety concerns form the basis for rejecting disabled persons. 7 In effect, the court made clear that
otherwise qualified disabled individuals had the sole discretion whether to accept any elevated
self-risk that may accompany placement in certain jobs, and only when an employer proves a
disabled individual poses a risk to others can he be excluded from employment.

 This Note traces the history of the federal government’s involvement in helping the
disabled participate more fully in the workplace, and puts in context the critical significance of
Echazabal in the long march toward greater equality. A review of the early statutes, beginning
after World War I, is followed by an examination of the government’s attempt to put teeth into
the law by obligating government contractors in 1973 to affirmatively take certain steps to insure
non-discrimination. 8 In 1990, the government went a step further by expanding the protection of
federal law to cover a greater number of employing entities, and requiring those organizations to
make reasonable accommodations to insure fuller participation of the disabled. 9
In passing the Americans with Disabilities Act of 1990, Congress specifically addressed the
role that safety and health concerns should play by incorporating as an affirmative defense the
concept relied on by the U.S. Supreme Court in its 1987 Arline decision permitting employers to
exclude those whose condition would pose a risk to the health or safety of others in the workplace.
10 Significantly, the legislature did not extend the exclusionary right to situations
where the only risk posed was to the individual’s own health or safety. 11 Regulatory
interpretation, however, expanded the scope of the exclusionary right to self-risk situations. 12
Following passage of the ADA and issuance of the Equal Employment Opportunity
Commission’s (EEOC) regulations, appellate courts reviewing ADA claims consistently gave
weight to the Agency’s interpretation permitting exclusion based solely on self-risk concerns, but
split on the issue of which party had the burden of proving the safety concerns were sufficient to
bar employment. 13 It was against this backdrop that the Ninth Circuit issued its decision in
Echazabal.

 Part III discusses the decision and the court’s reliance on text, history and policy in
formulating its position. Also explored are the dissent’s arguments that Plaintiff was not
qualified, the court should have shown more deference to the Agency’s definition of “direct
threat,” and Chevron should not have been forced to hire Mr. Echazabal because his employment
placed an undue ethical and legal burden on Defendant. 14

 The Note goes on in Part IV to analyze the Echazabal decision by looking at the plain
meaning of the ADA, its legislative history, and perhaps most importantly comparisons between
treatment of the disabled and other groups who have successfully dismantled artificial barriers to
employment initially justified by similar protectionist concerns. In particular the struggle of
women, Hispanics and Asians is reviewed. Also explored is the reality that many occupations are
inherently dangerous yet society permits non-disabled individuals to take on risky tasks each
day, and in fact the economy would fail to function if a line was drawn prohibiting people from
working in jobs that are statistically shown to cause greater levels of injury, disease, and death.
In recognition of this reality the state has set up compensation programs to pay the costs of the
inevitable harms visited upon those who willingly accept positions that lead to injury or death.
Given the history of the federal government’s long and continual promotion of integrating
the disabled into all aspects of the workplace; the clear and express language of the ADA; its
legislative history including specific adoption of the Arline “risk-to-others” concept of exclusion;
and the need to insure elimination of any disparate treatment of disabled workers, this Note takes
the position that Echazabal was correctly decided, and if eventually heard on appeal should be
affirmed.

II. BACKGROUND: AN EIGHTY-YEAR MARCH FROM REHABILITATION TO FULL PARTICIPATION

A. The Early Disability Statutes: Rehabilitation and Return to Remunerative Work

 “The initial interest of the Congress in the rehabilitation needs of the disabled was
centered in the returning World War I veterans.” 15 Shortly thereafter, the government took steps
to address the industrially disabled, and on June 2, 1920, President Wilson signed into law the
Smith-Fess Act. 16 At its inception, the law offered limited services such as training, counseling
and job placement for the physically handicapped. 17

 War again served as the inspiration for major developments in the treatment of disabled
citizens. During the height of World War II, Congress, in the summer of 1943 amended the
Smith Fess Act and authorized funds for medical, surgical and other physical restorative services
to eliminate or reduce the level of disability in those covered by the Act. 18 The 1943
amendments to the Smith-Fess Act also expanded coverage to mentally ill and mentally retarded
individuals for the first time. 19 Perhaps the most important development from the employment
standpoint was the law’s express goal of making recipients “fit to engage in a remunerative
occupation.” 20 The 1943 amendments changed the focus of government sponsored rehabilitation
programs from making the most of a disabled person’s limited abilities to actually reducing the
level of disability through medical intervention, and then training the person to participate as
fully as possible in the remunerative workforce.

 Two decades later three sets of amendments further expanded the federal government’s role
in addressing the needs of the disabled. In 1965, amendments were passed to “expand and
enlarge the public program to achieve the rehabilitation of a much larger number of handicapped
individuals.” 21 Additional amendments in 1967 and 1968 continued to expand the program with
a “primary purpose of providing vocational rehabilitation services to, or gainful employment for,
handicapped individuals.” 22 From its inception in 1920 through the early 1970’s, over 3 million
handicapped people had been rehabilitated through government sponsored programs. 23 Although
the programs provided medical and vocational rehabilitation benefits, the efforts to place
rehabilitated individuals into remunerative jobs was hampered by the absence of any affirmative
obligation on the part of employers to hire such individuals, and the lack of any protection from
all forms of disability related employment discrimination.

B. Expanding Employment Protection to the Disabled: Government Contractor Obligations

 In the early seventies Congress examined the need for modernizing the nation’s approach to
providing for the disabled and passed legislation in the form of the Rehabilitation Act of 1973. 24

1. Rehabilitation Act of 1973: Adding Affirmative Action Requirements for Federal Contractors

 In passing the 1973 Act Congress emphasized, “the program [would] remain vocationally
oriented,” 25 and made it clear that only the most severely handicapped would fall outside the
boundaries of coverage by stating that:

individuals who have severe handicaps can and should have vocational
goals, and that maximum effort must be expended to provide these
individuals with a broad range of services to enable them to realize this
potential. A new definition has, therefore been added defining certain
“severe” handicaps as those which generally require “multiple services
over an extended period of time.” The Committee is cognizant of the fact
that it may take greater effort to set up a rehabilitation program for these
individuals, and it fully expects rehabilitation counselors to make this
effort. 26

 Aside from expanding the scope of those who would qualify for vocational rehabilitation
services the Act added teeth to the government’s attempt to increase employment of handicapped
individuals by attaching an affirmative action obligation for federal contractors to “employ and
advance in employment qualified handicapped individuals as defined in section 7(6).” 27 For
the first time employers, though limited to those doing business with the federal government, were
required to take affirmative steps to employ handicapped individuals.

 Importantly, and in contrast to later Acts, nothing in the 1973 Act, or in the legislative
history, discussed whether the employer could take safety concerns for the individual or others
into account when considering a handicapped person for employment. In addition, there were no
affirmative defenses outlined in the Act expressly permitting an employer to argue that failure to
place a handicapped individual based on safety concerns was protected. 28 The emphasis up to
that point was to expand the employment of handicapped persons, even those with severe
conditions, and little energy was spent on defining criteria that could legitimately be relied on to
exclude those that employers had concerns about hiring.

2. The 1974 Amendments: Expanding the Pool of Covered Persons

 A year later Congress amended the 1973 Act and expanded the definition of
“handicapped individual” to “any person who (A) has a physical or mental impairment which
substantially limits one or more of such person’s major life activities, (B) has a record of such
impairment, or (C) is regarded as having such an impairment.” 29 Even though the amendment
enlarged the pool of covered persons, safety considerations again failed to make their way into
Congressional discussions.

3. The 1978 Amendments: Safety Concerns Make Their Debut

 The first indication of any safety considerations in the hiring of handicapped individuals
surfaced in 1978 during consideration of amendments to the 1973 Act. Congress sought to
clarify whether alcoholics and drug abusers came within the definition of “handicapped
individual.” In resolving their slightly differing positions the two houses agreed in conference
that “only those active alcoholics or drug abusers who cannot perform the essential functions of a
job in question or who present a danger to life and property are not covered by the employment
provisions of sections 503 and 504.” 30 Section 2(B) of the 1978 Act codified the concept
emerging from the conference committee by amending the definition of “handicapped
individual” under section 7 of the 1973 Act by clarifying that the “term does not include any
individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents
such individual from performing the duties of the job in question or whose employment, by
reason of such current alcohol or drug abuse, would constitute a direct threat to property or the
safety of others.” 31

 Nowhere in the language of the 1978 amendment or the legislative history is there any
mention of self-risk as a criterion for excluding an otherwise qualified person from employment.
In October, 1978, at virtually the same time the 1978 Amendments were enacted, the Office of
Federal Contract Compliance Programs (OFCCP), of the Department of Labor, issued Rules and
Regulations covering compliance with section 503 of The Rehabilitation Act of 1973, but in
doing so used less precise and more expansive language than Congress had when defining the
scope of safety concerns employers could rest on to exclude disabled persons from
employment. 32

4. The 1978 Department of Labor Regulations: Ambiguity From the Start

 The Rules, issued some five years following passage of the Act, incorporated the changes
made by the 1974 amendments in their definition of “handicapped individual” and further
outlined that a “handicapped individual” was considered “qualified” if “capable of performing a
particular job, with reasonable accommodation to his or her handicap.” 33 Lastly, the Rules stated
that job qualification requirements that tended to screen out “qualified handicapped individuals”
imposed a burden on the employer to prove that the requirements were “job related and
consistent with business necessity and the safe performance of the job.” 34
It is unclear how the Department intended to apply the safe performance element, or given
almost simultaneous publication, whether it had any knowledge or gave any consideration to the
concept of “threats to others” adopted by Congress in enacting the 1978 amendments. What is
clear though is a difference in wording existed between the Act as amended in 1978, and the
Labor Department’s Rules issued that same year. This ambiguity was never cleared up even in
1986 when Congress once again amended the definition of “handicapped individual” in section 7
of the 1973 Act. While making some changes in the wording of the Act to reduce stereotypical
verbiage, it failed to incorporate the broader exclusionary language that the Rules implied. 35

5. The Judiciary Weighs in: Sorting Through the Inconsistencies

 Aside from these legislative and regulatory developments, a series of cases decided from
1979 to 1987 attempted to clarify the interpretation of “qualified handicapped individuals,”
and in particular what role safe performance played in evaluating qualifications. In general, the
courts found a right to consider individuals not “otherwise qualified” if they posed a threat to the
health or safety of themselves or others. 36

 In 1987 the Supreme Court in School Board of Nassau County, FL, v. Arline 37 issued a
decision permitting employers to bar otherwise qualified persons from employment when they
posed a risk to the health and safety of others. The case did not deal with the issue of self risk,
but its limited scope ruling was important because Congress expressly relied on it in drafting the
direct threat defense language contained in the Americans with Disabilities Act of 1990; 38 text
that is at the very heart of the controversy in Echazabal.

 a. Arline: Focusing on Risks to Others

 In Arline the Court faced the question whether a school teacher “afflicted with
tuberculosis, a contagious disease, may be considered a ‘handicapped individual’ within the
meaning of §504 of the Act, and if so, whether such an individual is ‘otherwise qualified’ to
teach elementary school.” 39 In considering the first issue the Court found that Arline’s
hospitalization for tuberculosis in 1957 “suffice[d] to establish that she ha[d] a ‘record of …
impairment’ within the meaning of [the Act] and [was] therefore a handicapped individual.” 40

 Turning to the second question of whether Arline was “otherwise qualified” the Court
focused on the aspect of her employment that made her, in the eyes of the School Board,
“unqualified,” the health and safety risks her contagious disease posed to others she came in
contact with. Without reaching a conclusion the Court remanded the question to the trial court
and directed it to balance the goal of “protecting handicapped individuals for deprivations based
on prejudice, stereotypes or unfounded fear while giving appropriate weight to such legitimate
concerns of [the school board] as avoiding exposing others to significant health and safety
risks.” 41 The Court went on to explain that “[a] person who poses a significant risk of
communicating an infectious disease to others in the workplace will not be otherwise qualified
for his or her job if reasonable accommodation will not eliminate that risk.” 42
In his dissent, Chief Justice Rehnquist rejected the position that discrimination on the
basis of contagiousness alone triggers coverage under the Act. “The record in this case leaves no
doubt that Arline was discharged because of the contagious nature of tuberculosis, and not
because of any diminished physical or mental capabilities resulting from her condition.” 43
“[T]he central question here is whether discrimination on the basis of contagiousness constitutes
[handicap] discrimination.” 44 In answering that question the Chief Justice concludes
“contagiousness is not a handicap within the meaning of §504.” 45

 The difference between the two sides thus centered on the threshold question of whether a
person whose only “handicap” was contagiousness was even covered under the Rehabilitation
Act. The Chief Justice, joined by Justice Scalia, believed such persons were not covered for
failure to meet the basic definition of “handicapped.” In contrast, the majority led by Justice
Brennan felt that while individuals such as Arline met the definition they were subject to
ultimate rejection if their contagious condition posed a direct threat to the health and safety of
others that could not be eliminated through reasonable accommodation, thereby making them
“unqualified” for the position.

 b. Post Arline Reaction: Congress Codifies the Court’s Decision

 Shortly after the Court’s decision some members of Congress during debate over a bill
designed to reverse some judicial narrowing of various discrimination laws attempted to overturn
Arline. The plan, however, backfired and section 9 of the Civil Rights Restoration Act of 1987
actually added the Arline concept to sections 503 and 504 of the Rehabilitation Act of 1973. 46
The 1987 amendment expressly brought individuals with contagious diseases who were
otherwise qualified to perform the job in question under the coverage of the 1973 Act, and only
when “such disease or infection would constitute a direct threat to the health or safety of other
individuals” would such persons be deemed not otherwise qualified. 47 The focus of the direct
threat exception clearly was directed toward the concerns others may have when working with a
handicapped individual, and not the threat the disease posed for the individual himself. 48

 Just two years later when Congress passed the Americans with Disabilities Act the Arline
“threat to others” concept was carried over and expanded to cover threats beyond those
stemming from contagious disease. 49 Interestingly, no attempt was made to codify any of the
section 501 or 504 circuit court decisions that held that a direct threat to the individual’s own
health or safety could also be grounds for considering the handicapped person unqualified.

C. Expanding the Scope of Employment Protections: The Americans with Disabilities Act of 1990

 The purpose of the ADA [was] to provide a clear and comprehensive
national mandate to end discrimination against individuals with disabilities
and to bring persons with disabilities into the economic and social
mainstream of American life; to provide enforceable standards addressing
discrimination against individuals with disabilities, and to ensure that the
Federal government plays a central role in enforcing these standards on
behalf of individuals with disabilities. 50

 The Act expanded disability discrimination coverage to employers beyond those subject to
the Federal government contractor provisions of the Rehabilitation Act of 1973. 51 In doing so
Congress sought to parallel many definitional and remedial aspects of the laws then on the books
instead of introducing a new set of possibly conflicting standards. For instance, the ADA
incorporated “many of the standards of discrimination set out in regulations implementing
section 504 of the Rehabilitation Act of 1973 . . . and the enforcement provisions under Title VII
of the Civil Rights Act of 1964.” 52

 Tracking the Rehabilitation Act, the ADA made it unlawful for employers to discriminate
against “qualified individuals with a disability.” “Disability” was defined by the same three
prong test utilized by the Rehabilitation Act. 53 In order to be considered “qualified” an individual
was required “with or without reasonable accommodation, [to] perform the essential functions of
the employment positions that such individual holds or desires.” 54

 Aside from extending many of the Rehabilitation Act requirements to a broader range of
employers, Congress specifically incorporated concepts growing out of the Arline decision and
the 1987 amendment to the Rehabilitation Act so that otherwise qualified persons with
contagious diseases, or other conditions that posed a direct threat to the safety of others, would
be covered by the ADA, subject to subsequent disqualification from employment if the threat
they posed to others could not be eliminated through reasonable accommodation.

 Specifically Congress codified this concept as an affirmative defense in sections 12113(a)
and (b) of the ADA. Section 12113(a) borrows a portion of the language from the Department of
Labor’s 1978 Rules governing enforcement of the Rehabilitation Act:

[i]t may be a defense to a charge of discrimination … 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 show to be job-related and consistent with
business necessity, and such performance cannot be accomplished by
reasonable accommodation. 55

This section, however, expressly excluded part of the 1978 Rule that provided “safe performance
of the job” as an additional reason beyond “job-relatedness” and “business necessity” that an
employer could rely on to justify a disqualifying standard or criteria. 56

 Instead, Congress in the very next section, 12113(b), replaced the “safe performance of the
job” standard with a narrower one requiring an employer to show the individual will “pose a
direct threat to the health or safety of other individuals in the workplace.” 57 In addition to
directing the safety concerns toward others, Congress went on to specify that an exacting test
must be met for a “direct threat” to be found. “The standard to be used in determining whether
there is a direct threat is whether the person poses a significant risk to the safety of others, or to
property, not a speculative or remote risk, and that no reasonable accommodation is available
that can remove the risk.” 58

 Congress’ intent to incorporate the Arline concept in both whose safety must be considered
and the standard to be applied is clear.

In order to determine whether an individual poses a direct threat to the
health or safety of other individuals in the workplace, the Committee
intends to use the same standard as articulated by the Supreme Court in
School Board of Nassau County v. Arline. In Arline, the court held that a
“person who poses a significant risk of communicating an infectious
disease to others in the workplace will not be otherwise qualified for his or
her job if reasonable accommodation will not eliminate that risk ….” An
amendment defining “direct threat” was adopted by the Committee in
Section 101(8). Direct threat is defined as a “significant risk to the health
or safety of others that cannot be eliminated with reasonable
accommodation.” This definition was added to clarify that the direct
threat standard is a codification of the analysis in Arline. 59

During debate the Senate bill which limited the defense to threats from contagious diseases was
amended by a House measure, ultimately passed by both houses, that extended the direct threat
defense to any condition that imposed a significant risk to the health or safety of others. 60

 While the affirmative defense “clearly spell[s] out the right of the employer to take action to
protect the rights of its employees and other individuals in the workplace,” 61 the history also
reveals that Congress felt it “critical that paternalistic concerns for the disabled person’s own
safety not be used to disqualify an otherwise qualified applicant. As noted, these requirements
are incorporated in the legislation in sections 102(b)(1)(5)(6).” 62 Neither the text of the Act nor
the legislative history indicates any attempt to permit discrimination against qualified individuals
with a disability simply because placement in the job may pose a direct threat to their own health
or safety.

1. The EEOC’s ADA Rules: Regulatory Ambiguity Begins Anew

 On July 26, 1991 the Equal Employment Opportunity Commission issued its final rules
on compliance with the Americans with Disabilities Act. 63 Although the law limited the direct
threat defense to those threats that “pose a direct threat to the health or safety of other individuals
in the workplace,” 64 the EEOC’s rules expanded the definition of a “direct threat” to those that
pose a significant risk of substantial harm to the health or safety of the individual or others. 65
They did so even though many disability rights groups expressed concern that the EEOC’s
expansion of the exclusionary rule to cover self-risk situations would result in fewer employment
opportunities by allowing paternalistic employers to make decisions based on their belief of what
was in the best interests of the disabled person. 66

 Given the final rules, employers are left with a multi-step process in making employment
decisions. First they need to determine if the individual satisfies the prerequisites for the position
based on criteria such as appropriate educational background, employment experience, skills,
and licenses (equivalent to “otherwise qualified” in the Rehabilitation Act case law). Where the
basic criteria are met the employer must then determine whether the person can perform the
essential functions of the position, with or without reasonable accommodation. 67 Where a
reasonable accommodation will not eliminate the risk posed to a person’s own health or safety,
or to that of others, the person may be rejected as “unqualified.” 68 The Rules thus effectively
expanded the scope of the affirmative defense to permit exclusion of “otherwise qualified”
persons based on the threat to their own health and safety as opposed to the Act’s limited
exclusion based on a threat to others. 69

2. Integrating the Rehabilitation Act with the ADA: Who’s on First

 In October, 1992, the Rehabilitation Act Amendments of 1992 were enacted. 70 A primary
purpose of the legislation was to “ensure that the precepts and values embedded in the
Americans with Disabilities Act [were] reflected in the Rehabilitation Act of 1973.” 71 To
accomplish this purpose the standards applied under the ADA were to be used in making
employment discrimination determinations under section 503 of the Rehabilitation Act, and the
Rules regulating the Rehabilitation Act were to be made consistent with those governing the
ADA. 72 Responding to its statutory obligation the Department of Labor (OFCCP) issued a final
rule on May 1, 1996, revising the 1978 regulations governing the Rehabilitation Act of 1973 to
make them consistent with the ADA’s. 73 In reconciling the scope of the “direct threat” defense,
the OFCCP, like the EEOC before them, dismissed the concerns of disability rights groups and
adopted the EEOC’s approach by including self-risk as a permissible ground for exercising the
defense. 74 In reaching its decision it applied a somewhat circuitous logic by claiming the
definition it adopted was “identical to the parallel definition contained in EEOC’s ADA
regulations that in turn [were] based on the case law interpreting the Rehabilitation Act.” 75 Thus,
it appears the ADA regulations are actually based on pre ADA judicial interpretations of sections
501 and 504 of the Rehabilitation Act that Congress specifically failed to incorporate into the
ADA, instead of the plain language of the ADA itself. Thereafter, the OFCCP in adopting the
“ADA” regulations brought those interpretations full circle to once again apply to the
Rehabilitation Act. Were the text of the ADA and judicial interpretations of the Rehabilitation
Act in synchronicity no harm would logically result from the agencies’ approach, but where
significant differences exist, such as in the application of the direct threat defense to self risk, no
such claim can be made. This unmoored bit of regulatory language, recognizing a right to
exclude based on self-risk, has been the source of support for several early interpretations of the
ADA’s direct threat defense provision, even in the face of clear statutory language to the
contrary.

3. Judicial Interpretations of “Qualification Standards” and “Direct Threat:” What a Difference a Circuit Makes

 Beginning in the mid 1990s, following passage of the ADA and issuance of the
regulations, a number of courts grappled with the issues of which party carried the burden of
proving a plaintiff posed a “direct threat,” and whether the threat was limited to health and safety
concerns for others, or included self-risk as well. Courts split dramatically on these two issues.
Some suggested that the plaintiff carried the burden of proving he was not a direct threat, and
that the direct threat encompassed self-risk. Others held that while defendants had the burden to
prove a direct threat, concern for the individual’s own health and safety was enough to trigger a
successful defense. A third group held that the defendant carried the burden and further the direct
threat was limited to concerns for the health and safety of others.

 a. The Plaintiff Burden/Self-Risk Cases: A Double Whammy for the Disabled

 The Court of Appeals for the Eleventh Circuit led the way in interpreting the ADA in a
manner furthest from the express language of the Act. In Moses v. American Nonwovens the
court concluded that the term “direct threat” under the ADA included instances where only the
individual’s personal safety was at risk, and that the employee bore the burden of proving he was
qualified for the job given his threatening condition. 76 In Moses, plaintiff was fired after being
diagnosed with epilepsy, and the court in rejecting his appeal from a grant of a motion for
summary judgment in favor of defendant stated “an employer may fire a disabled employee if
the disability renders the employee a ‘direct threat’ to his own health or safety.” 77 In discussing
the burden of proof the court noted “[t]he employee retains at all times the burden of persuading
the jury either that he was not a direct threat or that reasonable accommodations were
available.” 78 Given its reading of the law, and the trial court’s factual finding that plaintiff would
have been required to work around moving equipment, and that his epilepsy was not well
controlled, the court concluded that plaintiff failed to prove that placement in the job would not
have exposed him to significant risk, or that any risk could have been eliminated through
reasonable accommodation. 79

 Two years later in LaChance v. Duffy’s Draft House, Inc., 80 the Eleventh Circuit
reinforced the notion that “[t]he employee retains at all times the burden of persuading the jury
either that he was not a direct threat or that reasonable accommodations were available.” In that
case, Plaintiff LaChance, a line cook in a restaurant kitchen containing potentially dangerous
equipment, suffered on the job epileptic seizures and was fired after some three months of
employment. He filed suit under the ADA and the district court granted defendant’s motion for
summary judgment finding plaintiff not a “qualified individual” under the Act because “he could
not perform the essential functions of the job without threat of harm to himself or others.” 81 The
circuit court in deciding the issue “whether LaChance produced evidence from which a
reasonable jury could conclude that he was not a direct threat” affirmed the action of the lower
court by stating that “LaChance failed to produce probative evidence that he was not a direct
threat.” 82 While the circuit court concentrated on the threat LaChance posed to others it implied
the analysis also reaches self risk by noting “LaChance admits that if he had continued working
at Duffy’s, he would have had seizures on the job which would have posed a risk of harm to
himself and others.” 83

 While the Eleventh Circuit’s interpretation of the scope of the direct threat defense mirrored
the EEOC’s, the Agency clearly believed the court was incorrect in placing the burden on
plaintiffs as evidenced by the Agency’s position in a Court of Appeals for the First Circuit case
decided some six months after Moses, EEOC v. Amego, Inc. 84 In Amego the EEOC argued:

whenever an issue of threats to the safety or health of others is involved in
a Title I case, it must be analyzed under the “direct threat” provisions of
§12113(b)as an affirmative defense … [thus it contended] the district
court erred in considering the matter of whether [plaintiff] posed a threat
to the safety of Amego’s clients as a matter of “qualification,” on which
the plaintiff bears the burden. 85

Further, the EEOC pointed out that a significant difference existed between the Rehabilitation
Act and the ADA in the definition of “qualified individual.” The former, through regulatory
interpretation, included an up front requirement that to be “qualified” an individual not
“endange[r] the health and safety of the individual or others,” while the latter only imposed the
requirement as part of its defense section. 86 Although the First Circuit acknowledged “the rub is
that the language about ‘qualification standards’ under Title I appears in a section of the statute
entitled ‘defenses’” it too rejected the EEOC’s position. 87 In affirming the district court’s grant
of defendant’s motion for summary judgment, the circuit court made it clear that a plaintiff has
the burden of proving he does not pose a significant risk and is therefore qualified. In reaching
its decision the court drew on Arline by noting “Arline considered [the direct threat] issue to be
part of the ‘qualification’ analysis under §504 as to which plaintiff bears the burden.” 88

 Currently, the First and Eleventh Circuits place the burden on the plaintiff to prove, as part
of meeting the qualification standards, that he does not pose a direct threat to either his own or
anyone else’s health or safety. 89 By doing so these courts have effectively elevated the absence
of any threat to an essential job function with which employees must prove they can comport.
b. The Defendant Burden/Self-Risk Cases: Half a Loaf is Better than None

 Taking a somewhat different approach was the Court of Appeals for the Fifth Circuit that in
a series of cases outlined the concept that while a direct threat could be one that posed a
danger to either the individual or others, the defendant bore the burden of proving the existence of the
threat. In Daugherty v City of El Paso, 90 the court provided some guidance on the scope of the
definition of “direct threat.” In that case the parties agreed that plaintiff, a city bus driver who
was diagnosed as an insulin dependent diabetic and thereby barred under federal Department of
Transportation regulations from driving a bus, was unqualified. 91 Plaintiff, however, argued that
the City’s failure to seek a permissible Department of Transportation waiver amounted to a
failure to reasonably accommodate his disability. Based on its previous rulings under the
Rehabilitation Act the court rejected the failure to accommodate claim finding it would amount
to unreasonable accommodation because

as a matter of law [ ] a driver with insulin-dependent diabetes is not
otherwise qualified because his medical condition presents a genuine
substantial risk that he could injure himself or others ... [and] this holding
likewise compels us to hold that under the ADA Daugherty is not “a
qualified individual with a disability” for the position of bus driver 92

The court never reached the issue of burden because it ruled as a matter of law that plaintiff was
unqualified because he posed a risk of injury to both himself and others.

 One year later the court reaffirmed that self-risk was a disqualifying criterion and went on
to provide guidance on the burden issue. In Rizzo v. Children’s World Learning Center, Inc., 93
the court, in reversing a grant of defendant’s summary judgment motion in a case involving a
school van driver with a hearing disability, relied on the EEOC’s regulatory guidelines to include
self-risk in the analysis of “direct threat,” but made it clear that “[a]s with all affirmative
defenses, the employer bears the burden of proving that the employee is a direct threat.” 94

 In a recent refinement to the affirmative defense interpretation, the court in EEOC v.
Exxon Corporation recognized a right of employers to defend discriminatory behavior based on
safety concerns under either the traditional “direct threat” defense, or under the “business
necessity” defense. 95 In response to the Exxon Valdez incident that resulted in billions of dollars
of environmental damage, Exxon developed a qualification standard that any employee who had
undergone treatment for substance abuse was barred from certain safety-sensitive, little-
supervised positions. 96 The EEOC argued that the “only defense available under the ADA when
an employer imposes a safety qualification standard is for the employer to prove that the
individual poses a ‘direct threat’” 97 The appeals court overturned the district court’s grant of
partial summary judgment for the EEOC, and instead held “an employer need not proceed under
the direct threat provision of §12113(b) [where an employer has developed a safety standard
applicable to all employees] but rather may defend the standard as a business necessity [under
§12113(a)]” 98 Distinguishing the application of the two theories in defending an action, the court
points out that “the direct threat test applies in cases in which an employer responds to an
individual employee’s supposed risk that is not addressed by an existing qualification standard
… In contrast, business necessity addresses whether the qualification standard can be justified as
an “across-the-board requirement.’” 99 While permitting an employer to treat a safety requirement
in a general as opposed to an individualized manner, the court retained the burden on the
defendant and articulated that “direct threat and business necessity do not present hurdles that
comparatively are inevitably higher or lower but rather require difference types of proof.…
Either way, the proofs will ensure that the risks are real and not the product of stereotypical
assumptions.” 100

 In a departure from their colleagues, the Court of Appeals for the Ninth Circuit
interpreted the ADA in a fashion most in line with its text and legislative history.

 c. The Defendant Burden/Risk-to-Others Cases: Giving the Disabled a Fighting Chance

 Although a district court had previously ruled that the direct threat defense did not apply
to self-risk situations, 101 the Ninth Circuit was the first and only federal appeals court to hold that
the defendant bears the burden of proving a direct threat, and the threat posed must exclusively
be to the health and safety of others, however, it took two steps to get there. First, in Nunes v.
Wal-Mart Stores, Inc., the court held that an employer has the burden of proof in “direct threat”
cases. 102 In Nunes, a sales associate who was terminated after a series of fainting episodes at
work filed, inter alia, an ADA suit. In reversing the district court’s grant of summary judgment
for the defendant, the appeals court stated that the question of whether Nunes posed “a direct
threat to the health or safety of other individuals in the workplace … is an affirmative defense
[that] Wal-Mart bears the burden of proving.” 103 The opinion went on to specifically note the
split between the EEOC regulations and the language of the Act itself, as well as judicial differences
on whether the “direct threat” defense applied to self-injury, but expressly declined to
rule on the issue, because the question of self-injury “was not addressed in the district court and
has not been properly presented in this appeal.” 104

 It was the Ninth Circuit’s second step, a holding in Echazabal, 105 where the court became
the first to unconditionally interpret the “direct threat” defense as applying exclusively to threats
posed to others, which significantly distinguishes it from other jurisdictions.

III. ECHAZABAL: A RADICAL DEPARTURE TOWARD A SENSIBLE INTERPRETATION

A. Legitimate Concern or Big Brotherism?

 In May, 2000, the Court of Appeals for the Ninth Circuit became the first federal appellate
court to reject an employer’s attempt to use the direct threat defense to bar a disabled person’s
employment based solely on concerns for that individual’s health and safety.

On this appeal, the principal question we consider is whether the “direct
threat” defense available to employers under the Americans with
Disabilities Act applies to employees, or prospective employees, who pose
a direct threat to their own health or safety, but not to the health or safety
of other persons in the workplace. We conclude that it does not. 106

 The Plaintiff, Mario Echazabal, worked as an employee of various maintenance
contractors at Defendant Chevron’s oil refinery in El Segundo, California, from 1972 until 1996,
on an almost continuous basis. 107 During that entire period he worked primarily in the coker unit
of the refinery and in 1992 applied to work directly for Chevron at the same coker unit
location. 108 After determining that he was qualified for the job, Chevron extended an offer of
employment contingent on passing a physical examination. The exam revealed that Mr. Echazabal’s
liver was releasing certain enzymes at a higher than normal level, and based on their
concern that continued exposure to the solvents and chemicals present in the coker unit would
further damage his liver, Chevron rescinded its job offer. 109 Plaintiff continued to work for
contractor Defendant Irwin Industries, Inc., at the same refinery, including in the same coker
unit, following rejection by Chevron. 110 Mr. Echazabal consulted with his physicians following
Chevron’s refusal to hire him and none of his doctors advised him to stop working at the
refinery. 111 Three years later, in 1995, Plaintiff again applied to Chevron for a position in the
coker unit, and the company again offered him a job contingent on a medical examination. 112
Once again Chevron rescinded its job offer following the exam based on an elevated risk of liver
damage, but also required Irwin to immediately remove Plaintiff from the refinery, or place him
in a job where he would not be exposed to solvents and chemicals. 113 Defendant Irwin,
responding to Chevron’s request, no longer permitted Plaintiff to work at the refinery. 114 As a
result, Mr. Echazabal filed a complaint with the Equal Employment Opportunity Commission. 115

B. Procedural History

 Subsequent to his EEOC filing, Plaintiff filed a complaint in California state court that
alleged in part that both Chevron and Irwin had discriminated against him on the basis of
disability in violation of the Americans with Disabilities Act. 116 Chevron removed the action to
federal court where the district court granted Chevron’s motion for summary judgment on all of
Mr. Echazabal’s claims. The court, however, denied Irwin’s motion for summary judgment, but
stayed the proceedings between Plaintiff and Irwin. It then certified its grant of Chevron’s
summary judgment motion for appeal. 117 On appeal, Chevron defended its decision to not hire
Plaintiff on the ground that it reasonably concluded that Mr. Echazabal would pose a direct threat
to his own health if he worked at the refinery, and under the ADA’s direct threat defense its
refusal under such circumstances was protected. 118

C. A Plain Meaning Interpretation of the Act and its Legislative History

 The court first dealt with the scope of the “direct threat” defense provision of the ADA.
In deciding “whether the provision permits employers to refuse to hire an applicant on the
ground that the individual, while posing no threat to the health or safety of other individuals in
the workplace, poses a direct threat to his own health or safety” noted several other appellate
decisions that concluded that the provision did apply to such situations. 119 In rejecting the
position taken by other courts, the Echazabal court turned first to the language of the Act itself,
and found it dispositive. 120

On its face, the [direct threat] provision does not include direct threats to
the health or safety of the disabled individual himself ... [and] the obvious
reading of the direct threat defense as not including threats to oneself is
supported by the definitional section of Title I, which states that the term
“direct threat” means a significant risk to the health or safety of others that
cannot be eliminated by reasonable accommodation. The fact that the
statute consistently defines the direct threat defense to include only threats
to others eliminates any possibility that Congress committed a drafting
error when it omitted from the defense threats to the disabled individual
himself. 121

The court specifically rejected Chevron’s argument that the plain meaning should be ignored
because it is contrary to the EEOC’s regulations. 122 The court explained, “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 ... [a]ccordingly, we reject the EEOC’s
contrary interpretation.” 123

 The court also rejected Chevron’s second argument; that requiring it to hire individuals
who posed a risk to their own health or safety would expose the company to tort liability.
Initially the court found the question not properly before it because Chevron failed earlier to
raise the argument of added costs from tort liability, but it took the opportunity to state that

in Johnson Controls, the Supreme Court strongly suggested that state tort
law would be preempted to the extent that it interfered with federal
antidiscrimination law … [t]herefore, given that the ADA prohibits
employers from refusing to hire individuals solely on the ground that their
health and safety may be threatened by the job, state tort laws would likely
be preempted if it interfered with this requirement. 124

Moreover, the court noted that Defendant’s concern over an award of damages reflected a fear
that hiring a disabled individual would cost more than hiring a person without disabilities, but
stated the extra cost does not provide an affirmative defense to a discriminatory refusal to hire a
disabled individual. 125

 Aside from making the “direct threat” and tort liability arguments, Chevron also relied on
the theory that it properly rejected Plaintiff because the risk to his liver made him not “otherwise
qualified” to perform the job at issue. The court agreed that the ADA does not require employers
to hire individuals who are not “otherwise qualified,” however, in reviewing Chevron’s argument
the court rejected the company’s assertion that “performing the work at the coker unit without
posing a threat to one’s own health or safety is an ‘essential function’ of the coker unit job.” 126
The court went on to elaborate that:

an employer may not turn every condition of employment which it elects
to adopt into a job function, let alone an essential job function, merely by
including it in a job description. Job functions are those acts or actions
that constitute a part of the performance of the job. “The job” at the coker
unit is to extract usable petroleum products from the crude oil that remains
after other refining processes … [by] various actions that help keep the
coker unit running [and that] Chevron does nothing more than add a
prohibited condition to these actual job functions when it asserts that the
job functions at the coker unit consist of performing the actions that help
keep the unit running without posing a risk to oneself … Chevron’s
reading of “essential functions” would, by definitional slight-of-hand,
circumvent Congress’s decision to exclude a paternalistic risk-to-self
defense in circumstances in which an employee’s disability does not
prevent him from performing the requisite work. 127

Having found that an employer may not impose a no risk-to-self requirement as an essential
function based on the language of the ADA, the court also rejected Chevron’s theory that it
should conclude that a personal safety requirement is a valid qualification standard because such
a conclusion was supported by case law implementing the Rehabilitation Act. 128 The court
explained that:

Mantolete relied on a Rehabilitation Act regulation that defined a
“qualified handicapped person” as an individual who, among other things,
is able to “perform the essential functions of the position in question
without endangering the health and safety of the individual or others.” The
Rehabilitation Act did not provide a statutory definition of the term
“qualified handicapped person.” Thus, the court deemed the regulations
controlling. In contrast to the Rehabilitation Act, the ADA contains a
statutory definition of the term “qualified individual with a disability,”
which is the ADA's equivalent of the Rehabilitation Act’s “qualified
handicapped person.” The statutory definition in the ADA does not mention
threats to the health or safety of the individual or others. Rather, it
requires only that the individual be able, with or without reasonable
accommodation, to “perform the essential functions of the employment
position that such individual holds or desires.” Obviously, the ADA's
statutory definition of the term “qualified individual with a disability”
supersedes the Rehabilitation Act’s regulatory definition of the analogous
term. 129

In rejecting any comparison to its former interpretations under the Rehabilitation Act the court
held “that the risk that Echazabal's employment might pose to his own health does not affect the
question whether he is a ‘qualified individual with a disability.’” 130

 In the face of such clear statutory language the court does not rely on the legislative
history of the ADA, but nevertheless traces it to lend support to its conclusion.

The term “direct threat” is used hundreds of times throughout the ADA’s
legislative history … Not once is the term accompanied by a reference to
threats to the disabled person himself. In addition, … [the committee
reports] explain that the direct threat provision is intended to codify the
Supreme Court’s holding in School Board of Nassau County v. Arline, a
case that defines “the term ‘direct threat’ [to] mean [ ] a significant risk to
the health or safety of others that cannot be eliminated by reasonable
accommodation” … While the House Judiciary Report notes that the ADA
extends the Arline standard “to all individuals with disabilities, and not
simply to those with contagious diseases or infections,”… it says nothing
about extending the standard to cover a disabled person whose
employment would be harmful to himself, as opposed to other
individuals. 131

 In addition to text and legislative history, the court looked at the trend in judicial
interpretation of employment discrimination statutes and the judiciary’s general reluctance to
endorse paternalistic employment policies. “Given Congress’s [sic] decision in the Title VII
context to allow all individuals to decide for themselves whether to put their own health and
safety at risk, it should come as no surprise that it would enact legislation allowing the same
freedom of choice to disabled individuals.” 132 The court concluded that:

the ADA's direct threat defense means what it says: it permits employers
to impose a requirement that their employees not pose a significant risk to
the health or safety of other individuals in the workplace. It does not
permit employers to shut disabled individuals out of jobs on the ground
that, by working in the jobs at issue, they may put their own health or
safety at risk. Conscious of the history of paternalistic rules that have often
excluded disabled individuals from the workplace, Congress concluded
that disabled persons should be afforded the opportunity to decide for
themselves what risks to undertake … [therefore we reverse] the district
court's grant of summary judgment to Chevron. 133

D. Another View: Protecting the Disabled from Themselves

 An alternative position, in the form of a dissent by Judge Trott, suggests that Plaintiff should
not prevail for several reasons: he is not “otherwise qualified” for the work he seeks, Chevron is
entitled to assert the “direct threat defense” to lawfully exclude him, and hiring Mr. Echazabal
would place an “undue ethical and legal burden,” including potential tort exposure, on
Defendant. Turning first to the not “otherwise qualified” argument, Judge Trott expresses a
practical concern that placing Plaintiff in the job “most probably will endanger his life [and
questions how he can] claim he can perform the essential functions of the position he seeks when
precisely because of his disability those functions may kill him. To ignore this reality is
bizarre.” 134

 The second strand of the dissent’s argument centers on Chevron’s right to assert the “direct
threat” defense outlined in the EEOC’s implementing regulations which define “a ‘direct threat’
to mean ‘a significant risk of substantial harm to the health or safety of the individual or others
that cannot be reduced by reasonable accommodation’” 135 Finding the EEOC’s position
“rationale” and “humane,” Judge Trott believes the majority has failed to acknowledge the
proper deference owned to the Agency in interpreting the ADA by instead substituting its own
judgment that Mr. Echazabal is qualified for this work. 136

 The dissent also makes the observation that the ADA specifically provides a defense to
employers who can demonstrate that an accommodation constitutes an “undue hardship,” and
that “it would be an undue hardship to require an employer to place an employee in a life-
threatening situation. Such a rule would require employers knowingly to endanger workers. The
legal peril involved is obvious, and [as] a simple human to human matter, such a moral burden is
unconscionable.” 137 In further developing his position Judge Trott dismisses any paternalism
argument by calling attention to numerous state and federal statutes and rules designed by
representative governments to protect workers from harm. “Long ago we rejected the idea that
workers toil at their own peril in the workplace. ‘Paternalism’ here is just an abstract out-of-
place label of no analytical help.” 138 He goes on to point out that in many jurisdictions it is a
crime to knowingly subject workers to life-endangering conditions, therefore, by permitting
Plaintiff to work in an environment where he is exposed to life threatening conditions the
majority is effectively repealing the protective laws and giving less protection to workers known
to be in danger than they afford to those who are not. 139

 Finally, in addressing the tort liability issue, he rejects the majority’s position that hiring
persons into jobs that pose a threat to their own health or safety will not potentially trigger state
tort liability. Suggesting that:

conflicting responsibilities under different labor laws will be solved down
the long, expensive, and unpredictable litigation road by the doctrine of
implied preemption seems highly pernicious in this context, and a thin
reed at best … Congress [did not] intend to nullify state and federal
workplace safety laws and render them impotent to protect workers in
identifiable harms way… anti-paternalism [does not] trump basic safety.
This entire construct makes a house of cards look secure. 140

In sum, the dissent argues that by considering Plaintiff “otherwise qualified,” and by not
permitting Chevron to assert the “direct threat” defense, nor consider it an “undue burden” to
hire a person whose placement in the job will lead to serious health consequences or death
the majority's holding leads to absurd results: a steelworker who develops
vertigo can keep his job constructing high rise buildings; a power saw
operator with narcolepsy or epilepsy must be allowed to operate his saw;
and a person allergic to bees is entitled to be hired as a beekeeper. The
possible examples of this Pickwickian ruling are endless. I doubt that
Congress intended such a result when it enacted laws to protect persons
with disabilities. 141

IV. IN SUPPORT OF ECHAZABAL: PROTECTING MASOCHISTS OR RECOGNIZING THE DISABLEDS’ RIGHT OF

SELF-DETERMINATION IN EMPLOYMENT DECISIONS?

 The key issue raised in Echazabal is whether the ADA permits an employer to deny a job to
an otherwise qualified disabled individual based solely on the employer’s concern for that
person’s own health or safety. In answering that question the Court of Appeals for the Ninth
Circuit became the first federal appeals court to hold that employers cannot bar an otherwise
qualified individual from employment simply because of self-risk concerns. The court’s
position, however, directly conflicts with the EEOC’s interpretive guidelines, 142 as well as
an Eleventh Circuit holding in Moses, 143 and dicta in several other federal appellate level
decisions. 144 In addition, Judge Trott in his dissent in Echazabal makes several arguments why
employers should be permitted to exclude individuals from taking jobs that pose a threat to their
own well-being. 145 Neither the plain language of the Act, its legislative history, or policy
considerations, however, supports those in opposition to the Echazabal court’s holding.

A. The ADA’s Text –A Clear Expression of a Narrowly Tailored Defense

 The ADA provides an integrated framework for looking at the rights and obligations of
employers in determining qualification standards for a position, and legitimate grounds for
rejecting those deemed unqualified. An employer has wide latitude in establishing the “essential
functions” of a job. 146 An employee is considered “qualified” if he can perform the “essential
functions,” with or without “reasonable accommodation.” 147 Accommodations become
unreasonable if they impose an “undue hardship” on the employer; an action requiring
significant difficulty or expense. 148 However, it is unlawful for an employer to use

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 job-related for the
position in question and is consistent with business necessity. 149

The defense section goes on to specifically address the proper role legitimate, job related safety
concerns may play in disqualifying otherwise qualified individuals and makes it clear such
disqualifications are permitted only when a direct threat to the health and safety of others in the
workplace is involved. 150 While the text permits a singular exclusion entitling an employer to
deny employment to otherwise qualified individuals when they pose a direct threat to the health
or safety of others, which cannot be eliminated through reasonable accommodation, it fails to
contain any reference to self-risk. Therefore, the position taken by other jurisdictions, that
otherwise qualified persons can be rejected for employment simply because of heightened self-
risk concerns, is unsupportable. 151

1. Self-Risk is Not Part of the Qualification Analysis

 “The term ‘qualified individual with a disability’ means an individual with a disability
who, with or without reasonable accommodation can perform the essential functions of the
employment position that such individual holds or desires.” 152 “Essential functions” are defined
by the EEOC as “fundamental job duties of the employment position.” 153 For instance, a duty
may be essential because “the reason the position exists is to perform that function,” or “the
function may be highly specialized so that the incumbent in the position is hired for his or her
expertise or ability to perform the particular function.” 154 The examples provided in the
regulations make clear that “essential functions” are the “things” an employer requires an
employee in the job to accomplish and are not methods of performing the work, nor minimum
safety requirements of the job. This interpretation of the ADA is consistent with the Supreme
Court’s teaching in Johnson Controls where in the Title VII context it rejected an interpretation
of the word “qualification” in the phrase “bona fide occupational qualification,” as including
a safety requirement, and stated the term is limited to the “qualifications that affect an employee’s
ability to do the job.” 155 In further distinguishing safety concerns from job qualifications the
Court went on to quote Seventh Circuit Judge Easterbrook’s dissenting opinion from that court’s
decision in the case below. “[I]t is a word play to say that ‘the job’ at Johnson [Controls] is to
make batteries without risk to fetuses in the same way ‘the job’ at Western airlines is to fly
planes without crashing.” 156

 The ADA makes it clear an employer may only raise safety as a legitimate bar to
employment when placement of a disabled person in the job would pose a threat to the well
being of others. 157 Any other use of safety concerns to conclude a person is not qualified is not
contemplated by the Act. It is therefore an impermissible stretch to conclude as Judge Trott did
in Echazabal that:

Mr. Echazabal simply is not “otherwise qualified” for the work he seeks.
Why? Because the job most probably will endanger his life [therefore] I
do not understand how we can claim he can perform the essential
functions of the position he seeks when precisely because of his disability,
those functions may kill him. 158

The issue is not whether the risk is justifiable, or one that an outsider would find acceptable, but
whether the risk itself makes Mr. Echazabal unqualified for the position because he would
endanger others. As he performed the exact work at issue for over twenty years, and there is
nothing in the record to indicate he posed a threat to others, and was twice offered the position
by Chevron, it cannot be said that Mr. Echazabal was “unqualified” as that term is defined by the
Act.

2. Moral Dilemma is Not a Component of Undue Burden

The term “undue burden” means an action requiring significant difficulty
or expense, when considered in light of the factors set forth [as follows:]
… (i) the nature and cost of the accommodation … (ii) the overall
financial resources of the facility or facilities involved in the provision of
the reasonable accommodation … (iii) the overall financial resources of
the covered entity and … (iv) the fiscal relationship of the facility or
facilities in question to the covered entity. 159

The definition implies that “undue burden” goes to financial ability to provide a reasonable
accommodation to the disabled individual. This interpretation is reinforced by the EEOC’s
regulations that discuss financial considerations, and make no reference to other forms of
concern that may amount to undue hardship. 160 Where an employer can prove that the making of
a reasonable accommodation “would impose an undue hardship on the operation of the business”
no accommodation need be made. 161 The only “accommodation” Mr. Echazabal requested was to
be permitted to work in a job he was qualified to perform, and had in fact performed for over two
decades. Judge Trott’s opinion that “it would be an undue hardship to require an employer to
place an employee in a life-threatening situation” because such a rule “would require employers
knowingly to endanger workers” and thereby expose them to “legal peril” and unconscionable
“moral burden” misses the mark. 162 Placing an individual in harm’s way may cause some angst,
but economics, not ethics must underpin any “undue burden” claim. Unless the placement
causes considerable financial strain the Act does not permit employers to assuage their
consciences by denying employment to those willing to take elevated risks. In this case Chevron
suffered no immediate financial strain by employing Mr. Echazabal as it gained a fully qualified
person to perform necessary work. While it may incur costs in the future should Mr. Echazabal
become ill, given its considerable corporate financial resources and the limiting influence of
workers’ compensation coverage it can hardly be said that such potential future costs would
impose an “undue hardship” on Chevron.

3. Relying on the EEOC’s Regulations-Skating on Thin Ice

 Both the court in Moses and Judge Trott in his dissent in Echazabal rely heavily on the
EEOC’s regulations in interpreting the scope of the “direct threat” defense. The Moses court
built its holding around the EEOC’s interpretation that “[a]n employer may fire a disabled
employee if the disability renders the employee a ‘direct threat’ to his own health or safety.” 163
Judge Trott in supporting Chevron’s analysis of their rights under the “direct threat” defense
states “[t]he EEOC’s implementing regulations, authorized by Congress, defines a ‘direct threat’
to mean ‘a significant risk of substantial harm to the health or safety of the individual or others
that cannot be reduced by reasonable accommodation.” 164 While decisions that rely on regulatory
interpretation may be justified in the absence of clear language, the language regarding the scope
of the direct threat defense could not be clearer. As pointed out by the majority in Echazabal,
“[u]nder Chevron, ‘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.’” 165 The
court went on to conclude “the intent of Congress is clear: the language of the direct threat
defense plainly expresses Congress’s [sic] intent to include within the scope of a §12113 defense
only threats to other individuals in the workplace [and a]ccordingly, we reject the EEOC’s
contrary interpretation.” 166 Additional caution before relying on the regulations may also be
warranted based on the Agency’s refusal to respond to the court’s offer to submit a brief on why
its position differed from the plain language of the text. 167

 It is reasonable to conclude, as the Echazabal court did, that had Congress wanted to include
self-risk as a permissible reason for excluding an “otherwise qualified” individual they simply
could have incorporated the concept into either the “direct threat,” “qualified individual with a
disability,” or “undue hardship” sections. 168 Having failed to do so, the EEOC by broadening the
exclusionary right to include self-risk has greatly exceeded its authority. As stated by the
Kohnke court, giving the “direct threat” defense language the interpretation urged by the EEOC
would “render entirely meaningless the phrase ‘of other individuals’… [and s]uch an
interpretation must be rejected in light of the general rule that ‘a court should not construe a
statute in a way that makes words or phrases meaningless, redundant, or superfluous.’” 169

4. Additional Textual Support

 In reading the Act as a whole, other sections add further support to the view that self-risk is
not a legitimate criterion for disqualification. For instance, the findings and purpose section
highlights the need to eradicate “overprotective rules and policies.” 170 Adding a requirement
that an otherwise qualified employee may be rejected based on a fear of injury is just the sort of
overprotective policy one would think Congress was keen in eliminating.

 Also, the Act limits the scope of an employer’s medical inquiry to those that are “job-related
and consistent with business necessity,” and for the sole purpose of determining “the ability of an
employee to perform job-related functions.” 171 It goes on to protect the confidentiality of the
results of any inquiry, but specifically permits “first aid and safety personnel [to] be informed,
when appropriate, if the disability might require emergency treatment.” 172 Together these
sections suggest that the medical inquiry must be narrowly tailored to determine whether the
individual’s disability prevents him from performing the essential functions, with a further
recognition that in cases where they can be performed, albeit with a heightened self-risk, medical
personnel may be informed of the employee’s condition so that they can provide appropriate and
timely medical assistance. By its very nature the Act’s recognition that the disabled may face
risks requiring emergency medical treatment while at work reinforces the position that excluding
them based on that risk is inappropriate.

 The Echazabal court perhaps best summarizes why its position is correct when it states:

On its face, the provision does not include direct threats to the health or
safety of the disabled individual himself … The fact that the statute
consistently defines the direct threat defense to include only threats to
others eliminates any possibility that Congress committed a drafting error
when it omitted from the defense threats to the disabled individual
himself. For these reasons, we conclude that the language of the direct
threat defense plainly does not include threats to the disabled individual
himself. 173

In sum, the express language of the Act only permits an employer to assert a defense on behalf of
other persons in the workplace who may have legitimate concerns about their own health or safety
without denying an otherwise qualified person employment simply because placement in
the job poses a risk to that individual’s own health or safety.

B. The Legislative History-Ignoring it Won’t Make it Go Away

 While the text of the ADA makes it clear that the “direct threat” defense is limited to
situations where a risk to others is involved, the legislative history while not required for
clarification, provides additional support that the express language was not drafted in error. In
fact both courts that found the “direct threat” limited to safety concerns for others spent some
time discussing the legislative history in order to give added weight to their holdings. In Kohnke
the court stated “[b]ecause the ‘direct threat’ language in the ADA is clear and unambiguous,
there is no need to consult the legislative history of the ADA.” 174 It went on however, to review
the history and found it “provides little support for the EEOC's view that a ‘direct threat’
includes a threat to the plaintiff himself.” 175 It also noted that the House Judiciary Committee
report explained “that the ‘direct threat’ language in the ADA codifie[d] the Supreme Court's
holding in [Arline] … [and extended] the standard “to all individuals with disabilities, and not
simply to those with contagious diseases or infections,” [but failed to extend the standard] ‘to a
disabled person harming himself as opposed to other individuals.’” 176 An indication that this was
a conscious decision by the Congress is the fact that the “House Judiciary Report mentions threat
or risk ‘to other individuals’ or ‘to others’ nine times, without once mentioning threat or risk to
the disabled person himself. [A] pattern that is apparent throughout the legislative history of the
ADA.” 177

 Completeness, not compulsion led the Echazabal court to similarly discuss the ADA’s legislative
history. “Although we need not rely on it, the legislative history of the ADA also supports the
conclusion that the direct threat provision does not include threats to oneself. The
term ‘direct threat’ is used hundreds of times throughout the ADA's legislative history … [and]
in nearly every instance in which the term appears, it is accompanied by a reference to the threat
to ‘others’ or to ‘other individuals in the workplace.’ Not once is the term accompanied by a
reference to threats to the disabled person himself.” 178

 It too explained that the language of the ADA was a codification of the Supreme Court’s
ruling in Arline, “a case that defines the term ‘direct threat’ [to] mean [ ] a significant risk to the
health or safety of others that cannot be eliminated by reasonable accommodation.” 179 The court
finds particularly persuasive a statement made by Senator Kennedy, a co-sponsor of the ADA, in
support of its reading of the statute:

The ADA provides that a valid qualification standard is that a person not
pose a direct threat to the health or safety of other individuals in the
workplace — that is, to other coworkers or customers . . . . It is important,
however, that the ADA specifically refers to health and safety threats to
others. Under the ADA, employers may not deny a person an employment
opportunity based on paternalistic concerns regarding the person's health.
For example, an employer could not use as an excuse for not hiring a
person with HIV disease the claim that the employer was simply
“protecting the individual” from opportunistic diseases to which the
individual might be exposed. That is a concern that should rightfully be
dealt with by the individual, in consultation with his or her private
physician. 180

 Interestingly, neither the Moses court nor Judge Trott in his dissent in Echazabal
discusses the legislative history thereby leaving a strong presumption that it fails to support their
positions. The clear language of the Act coupled with the overwhelming articulation of purpose
spread throughout the Congressional record leaves no doubt the proper application of the
“direct threat” defense. Adding to the support of the Echazabal court’s interpretation are strong policy
arguments that bolster its position.

C. Policy Considerations-A Need to Bring Disability Related Employment Practices in Line
With Those Governing Other Groups

 Aside from the sound textual and historical justifications for supporting the Echazabal
court’s decision it is time to treat the disabled similarly to other groups and permit them to
intelligently accept the elevated level of risk that leads to fuller participation in the workforce.
Other groups including women, Hispanics and Asians have already overcome protectionist
barriers to employment. Judicial decisions in gender and national origin cases have led to the
individual replacing the state or employer as the ultimate decision maker on matters impacting
self-health and safety. Just as doors have opened for these other groups, it is time for the
disabled to be treated with the same level of respect when making difficult personal decisions.

1. Gender-Protecting the Little Women

 Perhaps more than any other group women have historically been boxed out of better
paying jobs based on discriminatory practices justified in the name of protectionism. Only
recently have many barriers based on sex finally been broken. For example, protective laws and
policies once thought of as valid and rationale to protect women such as lifting restrictions,
maximum hour laws, height/weight requirements, as well as absolute bars to jobs involving
reproductive dangers or military combat, have all been struck down as artificial and
discriminatory hurdles preventing otherwise qualified women from performing jobs of their
choice, even when placement in such jobs posed added health risks.

1. Lifting Restrictions

 Prior to passage of the Civil Rights Act of 1964 (CRA) it was common for states to have
protective legislation that set limits on the amount women were permitted to lift in the
workplace. For instance the Georgia Commissioner of Labor promulgated a rule pursuant to
Georgia Code that provided: “Lifting. For women and minors, not over 30 pounds. Less
depending on physical condition of women or minors.” 181 When the CRA was passed it
prohibited discrimination on the basis of sex, except where gender was “a bona fide occupational
qualification reasonably necessary to the normal operation of that particular business or
enterprise.” 182 Following passage of the Civil Rights Act states continued to enforce their state
protection laws under the theory that the lifting restrictions preventing women from heavier
forms of work fell under the CRA’s bona fide occupational qualification exception. 183 They were
wrong. Successful challenges to these state laws paved the way for women to participate in a
fuller range of positions based on their ability to do the job while abolishing stereotypical
concepts that some risks were just too great for women to accept. For instance, in Weeks v.
Southern Bell 184 the local telephone company, relying on that state’s protective law, denied a
Georgia woman a switchman’s position that required lifting over thirty pounds. After being sued
under the CRA, the company admitted it rejected the plaintiff on the basis of her sex alone, but
defended its position by claiming “a bona fide occupational qualification [is] created whenever
reasonable state protective legislation prevented women from occupying certain positions.” 185 It
further justified its disqualification of Mrs. Weeks based on the fact that a switchman is “call[ed]
out 24 hours a day and is, in fact, called out at all hours and is sometimes required to work alone
during late night hours, including the period from midnight to 6 a.m.” 186 In rejecting the
company’s position the court found “Mrs. Weeks was denied the switchman’s job because she
was a woman, not because she lacked any qualifications as an individual.” 187 It went on to state
that:

Title VII rejects just this type of romantic paternalism as unduly Victorian
and instead vests individual women with the power to decide whether or
not to take on unromantic tasks. Men have always had the right to
determine whether the incremental increase in remuneration for strenuous,
dangerous, obnoxious, boring or unromantic tasks is worth the candle.
The promise of Title VII is that women are now to be on equal footing. 188
Just as Title VII opened the door for women to weigh the risks and make personal occupational
decisions the ADA should be interpreted to allow the disabled similar leeway.

2. Maximum Hours of Work

 In a similar vein, prior to passage of the CRA states often had maximum hours of work
laws limiting the number of hours women could work in a given week, thereby limiting their
employment opportunities. For instance, several years after Weeks Southern Bell again found
itself a defendant caught in the conflict between state and federal laws. The company denied a
Louisiana woman a promotion to a job requiring more than forty-eight hours per week of work
on the basis of that state’s maximum hours law which read, “[n]o female shall be employed in
any telephone or telegraph company, for more than eight hours in any one day and not more
than forty-eight hours or six days in any consecutive seven day period.” 189 The woman brought suit
under Title VII and the court struck down the state law:

the treadworn assertion of the state that “there are differences between the
sexes … sociological, physiological and biological … which justify
rational generic classification,” and that a prohibition on women working
in excess of eight hours a day or forty-eight hours a week is such a rational
generic classification. We join with the courts across the nation in
condemning such “stereotyped classifications” as failing to constitute a
bona fide occupational qualification and hence as unlawful employment
practices in violation of Title VII. 190

3. Fetal Protection Policies

 In 1991 the U.S. Supreme Court held fetal protection policies that prohibit women of
child bearing age from working in positions potentially harmful to their fetuses were a form of
sex discrimination in violation of the Civil Rights Act of 1964. 191 In Johnson Controls the
company instituted a policy that prevented women capable of bearing children from being placed
in jobs involving lead exposure. 192 In rejecting the Company’s bona fide occupational
qualification defense the Court stated “our cases have stressed that discrimination on the basis of
sex because of safety concerns is allowed only in narrow circumstances,” and went on to discuss
previous cases where concern for the safety of the individual was not a permissible ground for
discrimination. 193 It further narrowed the scope of the defense so that it only applied in
instances where the “third parties potentially impacted were indispensable to the particular business at
issue.” 194

 The Court summarized it position by noting:

[u]nless pregnant employees differ from others “in their ability or inability
to work,” they must be “treated the same” as other employees “for all
employment-related purposes.” This language clearly sets forth Congress’
remedy for discrimination on the basis of pregnancy and potential
pregnancy. Women who are either pregnant or potentially pregnant must
be treated like others “similar in their ability . . . to work.” In other words,
women as capable of doing their jobs as their male counterparts may not
be forced to choose between having a child and having a job. 195

Thus, under Johnson Controls not only is exclusion of women from the workplace based on risks
they may incur an impermissible use of a safety based BFOQ defense, when the defense is
employed under Title VII its application is severely limited to safety concerns for third parties
central to the normal operation of the particular business.

 The ADA’s defense is similar in nature as a “qualification standard” that screens out
disabled individuals must be “job related and consistent with business necessity,” and is limited
to those instances where an individual may pose a direct threat to the health or safety of others in
the workplace. 196 Beyond the industrial setting, the courts have also recognized that women may
not be excluded from many military combat roles simply because of special gender related risks
they may face in times of war.

4. Women in combat

Until the 1970s, the military did not feel compelled to justify its position
that women were not allowed to fill combat (as opposed to combat
support) billets. In the 1970s, with the women’s movement as a
motivating factor, the armed services and Congress finally set forth their
rationale for the combat exclusion. Congress’ rationale, one which the
Supreme Court found permissible in Rostker v. Goldberg, was that women
were not eligible for combat positions because of concerns such as “the
unknown effects of integrating the sexes in fighting units,” the nation’s
response to the sight of women coming home in body bags from a war,
and the possibility that women taken prisoner would be raped. 197

While women were technically not found in combat roles because of such concerns in reality
“American women have participated in combat since the American Revolution.” 198 It was not,
however, until the early 1990’s in Operation Desert Storm that “women in substantial numbers
were exposed to combat in a less than accidental fashion, including: piloting or crewing aircraft
that flew over enemy territory, manning forward supply positions (some located in Iraq itself),
and serving on ships within striking range of Iraqi aircraft and missiles.” 199 An outgrowth of the
successful role of women in the Gulf War resulted in the “repeal or modification of several of
the congressionally-mandated combat exclusion statutes and policies in 1991, 1993, and 1994.” 200
While some ground troop limitations remain, women today are fully engaged in air and naval
front line combat roles, 201 and even where they serve in combat support positions
“the unquestionable fact [is] that the nature of modern combat has blurred the boundary between front
line and rear echelon troops” thus the dangers facing women are comparable to those men face. 202

 This reality was brought home in the recent incident involving the USS Cole in which
two female crewmembers were among the seventeen killed in a terrorist attack on the vessel.
The two were “the first female sailors to die in a ‘hostile’ action since the Navy allowed women
aboard combat ships.” 203 While the nation grieved the loss of all those killed,

the country appears to have taken [the two women’s deaths] pretty much
in stride … [as] the large, and growing, role of women in the military is
now widely accepted … [leading some to say] the American public has
gotten used to women being killed in the line of duty, not only in the
military, but as police officers. 204

This incident involving women in perhaps the ultimate hazardous occupation marks a nearly
complete transition from society treating women in a protectionist manner to acknowledgment
that individuals of both genders are entitled to make life threatening, self-risk decisions in
selecting careers.

B. National Origin- Workplace Diversity Hastens the Demise of Archaic Protections

Artificial barriers that originally barred women from certain positions on the assumption
that they would be unable to safely perform the duties eventually served to also bar other groups
from employment. As the number of Asians and Hispanics in the workforce increased these
same qualification standards adversely impacted their employability. For instance, height and
weight requirements were long used as a proxy for ability to perform certain physically taxing
jobs, with employers often adding self-injury concerns as a rationale for the standard. These
requirements led to the screening out of not only women, but also Asians and Hispanics, and led
the EEOC and courts to find that such practices violated Title VII.

 “The direct and obvious effect of minimum height or weight requirements is … to
disproportionately exclude significant numbers of women, Hispanics and certain Asians from
consideration for employment.” 205 Accordingly, the EEOC stated that where the “employer
[wants] to retain the requirements [it] must show that they constitute a business necessity without
which the business could not safely and efficiently be performed.” 206 Where business necessity
could not be proven courts have struck down such barriers. For instance, the U.S. District Court
for the Northern District of California granted injunctive relief in a case where plaintiffs claimed
that a five foot six inch minimum height requirement for police applicants discriminated against
Asians, Latins and females. 207 Although the department argued that height would reduce
“assaultive conduct” and the “number of injuries sustained by officers while in the performance
of their duties,” the court rejected the alleged concerns citing “insufficient” evidence. 208

 Likewise, a Maryland District Court, in a case involving sex discrimination, found the Baltimore
Police Department’s minimum height requirement “excluded from consideration for employment
95 percent of the female population between the ages of 18 and 79 and only 32 percent of the
male population of the same age … [and] given the disparate effect of the height requirement on
men and women, plaintiffs have demonstrated a prima facie case of sex discrimination under
Title VII.” 209 After rejecting the department’s arguments for the height requirement based in part
on “concern about [female officer’s] personal safety” and dangers inherent in police work
requiring physical stature, 210 the court found for the plaintiffs. 211 Although the case’s
emphasis was on gender, requirements based on a size/personal risk rationale would presumably also fail
when applied to any group adversely impacted, including Hispanics and Asians.

 While federal legislation and judicial action combined to dismantle protective practices
that deprived women and members of certain national origin groups opportunities the ADA was
seen as a way to eliminate the same kinds of barriers faced by the disabled, and at the time of its
passage it was said that:

[t]he Americans with Disabilities Act completes the circle begun in 1973
with respect to persons with disabilities by extending to them the same
civil rights protections provided to women and minorities beginning in
1964 … [by providing] a comprehensive piece of civil rights legislation
which promises a new future: a future of inclusion and integration, and the
end of exclusion and segregation. 212

More than ten years have passed since that statement was made and it is time that the courts
respect Congress’ intent to extend to the disabled the full scope of civil rights presently
guaranteed women and minorities. Judge Trott in his dissent may be correct that some horrors
may occur if individuals are permitted to take certain jobs that pose a higher risk of self-harm,
but this ignores the reality that society routinely permits large numbers of adults to engage in
inherently dangerous occupations each and every day. Arguably it is riskier to allow “a
steelworker who develops vertigo [to] keep his job constructing high rise buildings; a power saw
operator with narcolepsy or epilepsy [to] operate his saw; and a person allergic to bees [to] be
hired as a beekeeper,” 213 but taken to its extreme, that any person who may be exposed to
“significant risk of substantial harm” should be barred from placement in the job, would
effectively bar everyone from certain critical but hazardous jobs, and impair society’s
ability to carry out essential functions. Given society’s wholesale acceptance of entire classes of
heightened risk the disabled should not be singled out and denied the same right to determine
what constitutes an acceptable level of risk given their personal needs.

C. Injury and Cost Concerns-Why Single Out the Disabled

1. Society’s Acceptance of Inherently Dangerous Work

 In 1970 Congress passed the Occupational Safety and Health Act in an effort to protect
employees from injury in the workplace. 214 Even after some thirty years of extensive regulatory
oversight some seven million private sector workers were injured or became ill on the job in
1998. 215 Of this number over two million people, equal to two percent of the workforce, suffered
a condition serious enough to lose time from work. 216 While a test requiring a risk free
environment is unrealistic, if society just banned people from working in jobs where the risk was
at least two and one-half times the norm (250% greater risk) it would be deprived of milk, beef,
pork, coal, iron, steel, aluminum, wood products, toilets, and commercial air transportation,
among other necessities of a modern society. 217 Even if society draws the line at death instead of
injury, in order to eliminate the over 6,000 workplace deaths a year it better be prepared to
prohibit employment in virtually every sector of the economy, including governmental services
such as police, fire, correctional, educational and public highway construction. 218

2. State and Federal Second Injury Funds-State Recognition of Inherent Hazards

 Instead of prohibiting members of society from engaging in these occupations society has
instead spread the risk by adopting workers’ compensation systems to cover the costs associated
with the inevitable injury and death that work produces. The disabled, if injured on the job, are
also covered by these state programs, and individual employers in most states are no worse off
when a work related injury is an outgrowth of a pre-existing condition. So called “second injury
funds” serve to cap individual employer exposure thereby removing the argument that
employment of the disabled will lead to unfair economic losses to those who hire them. In fact
one of the early stated purposes of state second injury funds, decades before the passage of the
ADA, was to encourage the hiring of disabled employees by cushioning or fully absorbing the
cost of a subsequent injury or disease based on a pre-existing condition. 219

 In addition, Congress adopted a similar concept in passing the Longshoremen’s and Harbor
Workers’ Compensation Act. 220 The U.S. Supreme Court in interpreting section 8(f)(1) of that
Act, which reads:

if an employee receive(s) an injury which of itself would only cause
permanent partial disability but which, combined with a previous disability
does in fact cause permanent total disability, the employer shall provide
compensation only for the disability caused by the subsequent injury:
Provided, however … the employee shall be paid the remainder out of the
special fund established in section 44, 221

found “a major purpose() of the second injury fund [was to prevent] employer discrimination
against handicap workers.” 222 Further, in relying on an interpretation of a New York statute that
served as a model for the federal Act the court specifically rejected a claim that the prior injury
had to be of an industrial nature, thereby extending coverage to all handicapped persons meeting
the definition and not just those previously injured on the job. 223

V. CONCLUSION

 The text of the ADA, its legislative history, particularly Congress’ clearly articulated
intent to graft the Arline concept of “risk-to-others” into the defense section of the Act, and
important policy considerations all support the Echazabal decision. The court was right when it
held denial of employment to “otherwise qualified” disabled individuals is only permissible
when their presence would pose a significant risk to the health or safety of others in the
workplace. Further, it correctly ruled that when safety is cited as the rationale for exclusion the
employer bears the burden of proving any “direct threat” claimed.

 Courts that have relied on the EEOC’s regulations to support their position that self-risk
is included in the definition of “direct threat” have failed to give sufficient weight to the express
language of the Act and its history. The Agency’s interpretation of the ADA as permitting
exclusion based on self-risk is perhaps well meaning, but it stems from an ill-founded attempt to
recycle a regulatory scheme erected under the Rehabilitation Act, but ignored by Congress in
passing the modern Act. While deference is due an oversight agency, it should be limited to
those instances where the agency is filling in gaps created by ambiguous language. No such
ambiguity exists in the affirmative defense section of the ADA.

 With regard to burden, courts that have required plaintiffs to prove they are “qualified” by
showing they can perform the job without injuring themselves or others have mistakenly treated
safety as an “essential function” of the job. Under the Act, the use of safety concerns as an
exclusionary device is severely limited. There is no requirement that a plaintiff prove he can
safely perform the job. Safety can only serve as a justifiable rationale for rejection when an
employer in defending his actions can show that an “otherwise qualified” individual, one who
can perform all the essential functions of the job, would pose a threat to the well-being of others
that cannot be eliminated through reasonable accommodation. Safety concerns therefore may
only be raised after the plaintiff’s ability to perform the essential functions of the job have been
established, and not as an ingredient of establishing them.

 In addition, barriers in the name of protectionism that in the past limited employment
opportunities for other groups have uniformly fallen when the weak logic behind them was
exposed to judicial review. The reality is that workers face a wide spectrum of risks each day
when leaving their homes to earn a living. We do not tell the soldier, police officer, or miner
who all face higher risks of injury or death to stay home because they may get injured. The
disabled should be treated no differently when they make decisions to take some elevated level
of risk to secure a job that best meets their overall needs. Society must assume the disabled are
no more masochistic than those without disabilities, and are therefore able to make intelligent
decisions about the trade-offs for themselves and their families when accepting positions that
expose them to risk. It is time to end the hypocrisy and allow the disabled to take jobs where
they are clearly qualified, instead of denying them the opportunity based on self righteous
concerns for their safety.