The statutory definition of "discrimination" covers a number of things an employer might do to block a disabled person from advancing in the workplace, such as using qualification standards that screen out or tend to screen out an individual with a disability. 42 U.S.C.S. § 12112(b)(6). By regulation, the Equal Employment Opportunity Commission allows an employer to screen out a potential worker with a disability not only for risks that he would pose to others in the workplace but for risks on the job to his own health or safety as well. 29 C.F.R. § 1630.15(b)(2) (2001).
The employer refused to hire the applicant because a physical examination showed liver abnormality or damage caused by Hepatitis C, which the employer's doctors said would be aggravated by continued exposure to toxins at the employer's refinery. The applicant sued the employer, alleging that the employer violated the Americans with Disabilities Act of 1990 (ADA) in refusing to hire him because of a disability. The employer defended the ADA suit by claiming that 29 C.F.R. § 1630.15(b)(2) (2001) permitted the defense that the applicant's disability on the job posed a direct threat to his health.
Can an employer refuse to hire an applicant with disability if the job would endanger the applicant’s health?
The United States Supreme Court determined that the ADA did not preclude the harm-to-self regulation. The Court rejected the applicant's argument that the harm-to-others provision in 42 U.S.C.S. § 12113(b) excluded the harm-to-self defense. The interpretive canon expressio unius exclusio alterius did not apply. Chevron deference applied to the regulation because the regulation made sense of the statutory defense for qualification standards that are job-related and consistent with business necessity; the risk of violating the Occupational Safety and Health Act of 197 was enough to show that the regulation was entitled to survive.