Workers’ Liberty, Workers’ Welfare: The Supreme Court Speaks on the Rights of Disabled Employees

Abstract

On June 10, 2002, a unanimous US Supreme Court rejected the claim by Mario Echazabal that he had been denied his rights under the Americans with Disabilities Act when Chevron USA had refused to employ him because he had hepatitis C. Chevron believed that Echazabal’s exposure to hepatotoxic chemicals in its refinery would pose a grave risk to his health.

This case poses critical questions about the ethics of public health: When, if ever, is paternalism justified? Must choice always trump other values? What ought to be the balance between welfare and liberty?

Strikingly, the groups that came to Echazabal’s defense adopted an antipaternalistic posture fundamentally at odds with the ethical foundations of occupational health and safety policy.

ON JUNE 10, 2002, IN A unanimous decision delivered by Justice David Souter, the US Supreme Court rejected the claim by Mario Echazabal that he had been denied his rights under the Americans with Disabilities Act (ADA) when Chevron USA had refused to employ him.1 Echazabal, who had hepatitis C, had been rejected for a job that he had performed for years for a contractor to Chevron because the company believed that his exposure to hepatotoxic chemicals in its refinery would pose a grave risk to his health. Even were Chevron correct in its judgment about the dangers—which Echazabal denied—he believed that under the ADA the determination of whether to take such risks was his to make.

The 9th Circuit Court of Appeals in California had, in 2000, held that Echazabal was right and that the ADA had been enacted to preclude the kinds of paternalistic judgments Chevron had made. It further held that the Equal Employment Opportunities Commission (EEOC) had erred in 1991 when it decided that workers who would, because of their disabilities, be exposed to risk themselves were excluded from ADA protection. In his dissent from the 2-to-1 decision of the Appeals Court, Judge Stephen Trott warned of the implications of the majority’s denunciation of paternalism: “Long ago we rejected the idea that workers toil at their own peril in the workplace.”2 In reversing the 9th Circuit Court and Echazabal’s claims, the US Supreme Court at the same time affirmed the legitimacy of the EEOC’s 1991 determination.

By any measure, the Echazabal decision is of extraordinary significance for the future of antidiscrimination law and occupational health regulation. To advocates of people with disabilities, the court made an enormous error and opened the way to the evisceration of the ADA. To Chevron and its allies, the court recognized the rights of employers to make sound employment decisions.

Beyond matters of law and the all-important issue of congressional intent, this case poses critical questions about the ethics of public health: When, if ever, is paternalism justified? Must choice always trump other values? What ought to be the balance between welfare and liberty? Do the conditions of the labor market, as Norman Daniels long ago argued,3 so impinge on options that paternalism is justified as a way of protecting workers from making choices under condition of duress? Now that the Supreme Court has spoken so univocally about the EEOC’s interpretive guidelines for the ADA, these matters are of far more than academic interest. There is no question that Congress could amend the ADA to preclude the exclusion of workers who pose only a danger to themselves. Whether it will do so will in large measure depend on the force with which disabilities rights groups press the challenge. It is therefore especially important to understand the root-and-branch rejection of paternalism that informed the arguments of those who supported Echazabal, and which reflected a fundamental rupture with a central tenet of labor legislation.

LABOR PROTECTION AND PATERNALISM IN PERSPECTIVE

Writing in the mid-1980s, against a backdrop of a deep concern by labor advocates that employers would increasingly rely on screening devices to identify and exclude workers who were especially susceptible to disease, Eula Bingham, who had directed the Occupational Safety and Health Administration (OSHA) during the Carter administration, made clear her commitment to the protection of the vulnerable. It was the duty of management to make the workplace safe, and it was government’s responsibility to establish standards that were broadly protective. “Ideally,” said Bingham, “this means establishing legally permissible exposure levels that protect even the most sensitive individuals.”4(p87) But in some instances, there would be a clash between a worker’s health and freedom to choose a given job. Under such circumstances, as a last resort, “there may be no alternative but to exclude certain workers from jobs that pose hazards for which no protective measures can be taken.”4(p87)

Such a protective posture, with its clear embrace of paternalism, has been a central feature of labor standards. The lead standard adopted in 1978—among the most protective—requires the periodic examination of exposed workers. Those whose blood levels exceed permissible limits must be transferred to jobs with no lead exposure while their wage rates and other job benefits remain unaffected. Employers have no choice but to bear the burden of such “medical removal protection.” Workers cannot choose to remain in their exposed jobs once informed of the risks. Other OSHA standards prohibit workers from assuming risks they might choose to take. The fire brigade standard prohibits employers from allowing employees with heart disease, epilepsy, or emphysema from engaging in emergency efforts without a physician’s certification of fitness. The ventilation standard prohibits workers with sores, burns, or skin lesions from working in spray finishing operations without a physician’s authorization.5(p158)

But such paternalism was at odds with increasingly powerful cultural and social trends in American society. Perhaps most critically, the modern bioethics movement that emerged in the 1970s had shattered the hegemony of medical paternalism by enshrining the principle of autonomy. It was for patients to decide what risks to take, what treatments to commence or cease. The “rights revolution” was also reflected in, and propelled forward by, constitutional decisions regarding the institutionalization of the mentally ill. Wholesale assumptions regarding the needs of individuals with psychiatric disease were jettisoned for more exacting standards regarding when, for what reasons, and for how long compulsory institutionalization was acceptable. Increasingly, public health measures that might in the past have been justified with paternalistic reason were cloaked in the garb of harm to others—motorcycle helmet and automobile seat belt laws, which were justified on grounds of limiting the publicly borne burden of medical expenditures, provide clear examples. To be sure, there were limits to the antipaternalistic ethos—the use of illicit drugs and euthanasia being among the most obvious. But the regnant ideology was hostile to paternalism.

In the context of labor, the struggle to protect the rights of women, part of the broader feminist movement, provided the occasion for the expression of an unyielding hostility to the paternalism that had for so long served to justify the most egregious forms of discrimination in the job market. As explicitly paternalistic rationales for discrimination became less socially and politically acceptable, justifications of discrimination centered on the needs of the potential offspring of working women. In the last decades of the 20th century, the controversy increasingly centered on the question of whether employers could deny jobs to women of childbearing age because of the possibility that they might become pregnant and the unborn might be exposed to toxic substances. Such discrimination was justified by employers as necessary to protect innocent victims—third parties without voice—but opposed by advocates for women’s rights as rank paternalism. It was for women themselves to determine whether they would take risks affecting their reproductive health. The battle was joined in 1979 when 5 women chose to be sterilized in order to keep their jobs with American Cyanimid, where they were exposed to lead-based paint.

A decade later, in 1990, the issue was addressed by the US Supreme Court in the case of Johnson Controls, where women were barred from jobs that exposed them to lead in batteries. The court unanimously rejected fetal protection policies that excluded all fertile women from certain jobs as a violation of Title VII of the Civil Rights Act and the Pregnancy Discrimination Act. Speaking for the court, Justice Harry Blackmun asserted that the “professed moral and ethical concern about the welfare of the next generation”6(p206) did not provide a basis for excluding women. Under the law, sterility was not a “bona fide occupational qualification”—a standard that could stipulate permissible categorical limits for employment. Underscoring the extent to which concerns about women’s reproductive functions and roles had served as a pretext for denying equal employment opportunities,6(p211) Justice Blackmun stressed that the choice about which risks to take were for women to make: “Decisions about the welfare of future children must be left to the parents who conceive, bear, support and raise them rather than to the employers who hire them. Congress has mandated this choice. . . .”6(p206) In his concurring opinion, Justice Antonin Scalia made this point more starkly. Rejecting as irrelevant the controversies about the nature of the hazards entailed and the extent to which men too might, if exposed, face reproductive risks, he asserted, “By reason of the Pregnancy Discrimination Act it would not matter if all pregnant women placed their children at risk in taking these jobs, just as it does not matter if no men do so.” Citing a lower court decision, Scalia concluded, “Title VII gives parents the power to make occupational decisions affecting their families. A legislative forum is available to those who believe that such decisions should be made elsewhere.”6(p223)

This then was the backdrop to the Supreme Court battle over the EEOC’s explicitly paternalistic interpretation of the ADA that permitted employers to exclude workers who faced medical hazards because of jobrelated exposure.

THE CONFLICT BEFORE THE SUPREME COURT

In its petition to the Supreme Court, which asked the court to take up the Echazabal case and overturn the 9th Circuit Court of Appeals decision invalidating the EEOC’s interpretive guideline, Chevron denounced the absurdity of a holding “that will cost workers’ lives and force unwilling employers to be complicit in their injuries.”7(p3) Failure to restore the EEOC’s threat-to-self guideline would mean that employers could not deny jobs handling dangerous machinery to individuals with uncontrollable epileptic seizures or exclude individuals with vertigo from jobs involving high structures.7(p12) Chevron’s brief before the court linked such moral matters to legitimate business concerns: the maintenance of a workforce with low absenteeism and high morale and the avoidance of OSHA citations, state administrative or criminal sanctions, or tort actions.8(p14–15) These were critical elements in the claim that the discrimination against workers like Echazabal should be recognized as legitimate under the doctrine of business necessity.

Chevron’s fears were given official credence by the EEOC, which defended its interpretation of the ADA by arguing that neither the language of the act nor its legislative history established a congressional intent to exclude harm-to-self justifications for refusing to employ otherwise qualified workers. Unlike the stereotypical assumptions that marked the history of discrimination against people with disabilities, such determinations were to be based on individualized assessments that a threat of significant risk existed that could not be eliminated by reasonable accommodations to the needs of the worker.9(p18) The refusal to hire workers who could, as a result of their disability, suffer significant harm was an appropriate defense, on the grounds of business necessity, against the charge of unlawful discrimination.

Those who came to the defense of Echazabal and who challenged the EEOC—virtually the entire disabilities rights community, civil liberties and rights organizations, and public health groups, but, strikingly, not the labor movement—occupied a wholly different moral and political universe. They spoke out against a backdrop of exclusionary policies that sought to deny jobs to women, disabled persons, people with HIV, and those with genetic or behavioral profiles that placed them at increased risk. In the name of protecting the vulnerable, such policies deprived individuals of the most important element in personal welfare—the ability to earn a living. For such groups, the Supreme Court decision in Johnson Controls represented a high-water mark in the affirmation of the rights of workers to resist intrusive paternalism based on stereotypical assumptions.

In an amicus brief filed by the American Public Health Association (APHA), which was joined by a host of liver disease–related groups as well as the gay rights organization Lambda Legal Defense and Education Fund, the long-standing opposition to policies focused on worker vulnerability rather than workplace conditions was underscored:

Allowing employers to rely on the ADA to remove those workers with impunity actually provides an incentive to avoid costs associated with improving workplace safety in favor of removing employees as they show signs of disease.10(p8)

The concern for worker safety expressed by Chevron “dressed in sheep’s clothes” an approach that “ensure[d] the continuation of higher rates of occupational disease,”10(p7) since any threat to Echazabal’s health posed inevitable risks to all workers. In its refusal to acknowledge that some disabled workers were especially vulnerable and that such vulnerability might not be remedied by “reasonable” modifications of the workplace, the APHA sidestepped the issue of whether those who, in fact, faced increased risk had the right to choose to do so. That was the issue that occupied other briefs filed on behalf of Echazabal.

The denunciation of paternalism in those briefs were impassioned, informed by fears that the EEOC’s recognition of a harm-to-self justification for discrimination could undo the achievements of the ADA itself. “For too long,” wrote the American Association of People with Disabilities, “people with disabilities were once deemed incompetent to direct their own lives. The hallmark of the ADA is the recognition that people with disabilities can live independent lives. Key to this principle is the right to make decisions about risks that are worth taking. . . .”11(p2) Undergirding this new perspective and the recognition of the primacy of “self-determination” was the shift “from dependence to independence, from social welfare to civil rights.”10(p4)

These views were echoed by the National Council on Disability, an independent federal agency whose members are appointed by the president and confirmed by the Senate. The paternalism embedded in the EEOC standard and acted upon by Chevron represented nothing short of the kind of infantilization the ADA had sought to vanquish. Such invasive protections would represent a new barrier to the integration of those with disabilities into the social mainstream. According to the Council’s brief, “Encountering risk is an element of everyday life experience. Assessing and accepting risk are basic elements of personal independence and of adult responsibility.” What made the EEOC’s holding especially egregious was that it substituted the judgment of others about the probability of harm for that of the person involved. Paternalistic discrimination had as its most “insidious” aspect “the assumption that people with disabilities are not competent to make informed, wise or safe life choices.”12(p4) In short, such a perspective failed to treat those with disabilities as adults.

Mario Echazabal’s lawyer buttressed the moral argument for the right to choose with an analysis of the uncertainties that inevitably surrounded medical decisionmaking. Such uncertainties could not be overcome by the “individualized” assessments of risk. Medical evaluations were “probabilistic” and only in the “rarest of cases” were they characterized by “absolute certainty.” Would this worker, with this condition, exposed to these circumstances experience injury or death? “The most a physician can typically do is reach an intuitive or statistical conclusion . . . that the individual is more likely to experience such harm. The assessment of risk of a given applicant or employee, even by the most experienced physician is no more than an educated guess.”13(p21) It was not, however, simply the degrees of uncertainty that justified the determination to give workers the right to choose when confronted by such “guesses.” Paternalism was unacceptable even “without being wrong on the merits.”13(p19)

The most direct defense of this position was enunciated in the amicus brief filed by the American Civil Liberties Union, women’s rights groups, and the Puerto Rican Legal Defense and Education Fund. While seeking to limit its claims to those who were part of “legally protected classes,” the thrust of their thoroughgoing antipaternalism was clear. Citing with approval past decisions by the Supreme Court, the American Civil Liberties Union and its collaborators asserted, “Despite the prospect of an acknowledged and avoidable harm to an individual in these cases the Court reaffirmed the basic principle that decisions about risks to oneself are reserved to the individual and are not for third parties to make based on the individuals’ membership in a protected class, no matter how serious the risk of harm may be and no matter how well intentioned the proposed exclusion [italics added].”14(p18) In the end, it did not matter whether exclusions were based on stereotypes, protective rationales, or individual assessments.14(p24) They were prohibited by civil rights laws.

In the clash that took place before the Supreme Court, the ironies were striking. Business defended its interest by the appropriation of the language of social justice. In oral arguments before the court, Chevron’s attorney characterized Echazabal’s exclusion as consonant with a long history of concern for the well-being of workers: “In all well-run businesses today, the model of the business is ‘safety is our business.’ For 100 years in this country the industrial policy has been safety comes first.”15(p17) The US Chamber of Commerce also came to the defense of paternalism and the protection of workers by OSHA: “[T]he OSH [Occupational Safety and Health] Act forcefully shows that Congress remains ‘paternalistically’ concerned about protecting workers from workplace hazards and the ADA does not even remotely wish to condemn individualized judgments about whether particular workers are especially susceptible to workplace hazards.”16(pp23–24)

WORKERS’ RIGHTS AND THE FLIGHT FROM PATERNALISM

More significant was the flight from paternalism on the part of organizations broadly committed to social justice. That the labor movement was silent on this case must, in part, be understood in terms of the long history of advocacy on behalf of protective regulations. One has to reach back almost a century, to the 1905 case Lochner v New York, to find an echo of so thoroughgoing a rejection of the role of paternalism in labor legislation. In what is now widely acknowledged as an appalling reflection of an earlier court’s ideological insistence on the constitutionally protected status of free contract in a free market, the Supreme Court overturned New York State legislation that restricted the labor of bakers to 10 hours a day or 60 hours a week. “There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor, in the occupation of a baker,” the Supreme Court declared. “There is no contention that bakers, as a class, are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State.”17(p57)

That organizations with a long history of struggling to protect the interests of the vulnerable have embraced the antipaternalism that is more typically given voice by the proponents of privilege is a situation worth pondering. How long a distance had been traveled since the days of Louis Brandeis, who had, in a 1908 Supreme Court case on the constitutionality of a maximum working hours law for women, provided evidence about the way in which workers’ circumstances necessitated protective measures. In what became known as the “Brandeis brief,” he marshaled sociological and statistical evidence of the unique harms from which women needed to be protected in the face of potentially exploitative labor practices. The current situation not only suggests the profound influence of individualism in American culture but also reveals the tension between that influence and a robust view of social justice.

CONCLUSION

Were economic prospects different, workers with disabilities would not seek employment that placed themselves at risk. And in those unusual circumstances when some individuals did choose health risk–imposing employment, paternalistic regulations barring such choices would not carry with them the welfare risk–imposing consequences of unemployment.

While it is unfashionable to say so directly, paternalism is at the core of public health. Ensuring that limits on choice will, in fact, serve the good of enhanced welfare is thus the challenge we face. But to pursue that end it is crucial to recognize the distinction between delivering choice and delivering justice.17 That is a distinction that was all but lost in the briefs filed before the Supreme Court on behalf of Mario Echazabal.

More than 150 years ago, John Stuart Mill, who so famously denounced paternalism in his essay On Liberty, nevertheless understood the nature of freedom in the labor market. In The Principles of Political Economy, published in 1848, he challenged Adam Smith’s optimistic assumptions about how markets would ultimately resolve the inequities that confronted workers. “The really exhausting and the really repulsive labors,” Mill wrote, “instead of being better paid than others are almost invariably paid the worst of all because performed by those who have no choice.”19

This is an observation worth thinking about when choice is proffered in the face of injustice.