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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-11356

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Appellee,
versus
EXXON CORPORATION,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas

February 11, 2000
Before HIGGINBOTHAM and SMITH, Circuit Judges, and DUPLANTIER,
District Judge.*
PATRICK E. HIGGINBOTHAM, Circuit Judge:
In this appeal under the Americans with Disabilities Act
("ADA"), we review the measure of a safety-based qualification
standard defended as a business necessity. The EEOC moved for
partial summary judgment arguing 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." The district court granted the motion. We are
* District Judge of the Eastern District of Louisiana, sitting
by designation.

not persuaded by the position of the EEOC and accepted by the
district court. Rather, we find that applying direct threat only
in cases in which the employer imposes a special safety standard in
an individual case offers a more coherent meaning of the statute
and of the role of safety under it. We REVERSE.
I
The EEOC brought this suit on behalf of certain Exxon
employees, alleging that Exxon's substance abuse policy violates
the ADA. The policy permanently removes any employee who has
undergone treatment for substance abuse from certain safety-
sensitive, little-supervised positions. The policy affects about
ten percent of Exxon's positions. Exxon adopted the policy in
response to the 1989 Exxon Valdez incident, in which one of its
tankers ran aground, causing environmental injury and resulting in
billions of dollars of liability for Exxon. Concerns arose that
the tanker's chief officer's alcoholism, which had previously been
treated, might have contributed to the accident.
The EEOC claims that pursuant to the policy, Exxon demoted
employees who underwent treatment several decades ago. Exxon
justifies its policy as promoting safety in jobs in which it is
unable to oversee employees to ensure they are not relapsing into
substance abuse, as well as furthering environmental protection,
the prevention of future tort liability, and good corporate
citizenship. Before trial, the EEOC moved for partial summary
2

judgment on the grounds that Exxon must defend its policy under the
"direct threat" provision of the ADA. The magistrate judge
recommended summary judgment for the EEOC, and the district court
adopted that recommendation but acknowledged the difficulty and
certified the issue for appeal. We granted leave to Exxon to
appeal the interlocutory order under 28 U.S.C. � 1292(b).
II
The ADA prohibits an employer from using qualification
standards that screen out a disabled individual or class. See 42
U.S.C. � 12112(b)(6) (1999). An employer may raise certain
affirmative defenses to such a charge.1 The relevant portions of
the statute's "Defenses" provision read:
(a) In general
It may be a defense to a charge of discrimination under
this chapter that an alleged application of qualification
standards . . . that screen out or tend to screen out or
otherwise deny a job or benefit to an individual with a
disability has been shown to be job-related and
consistent with business necessity. . . .
(b) Qualification standards
The term "qualification standards" may include a
requirement that an individual shall not pose a direct
threat to the health or safety of other individuals in
the workplace.
� 12113. Safety-based qualification standards are an accepted
ground for a defense; the question before us is whether an employer
may defend the questioned personnel decision as based on a standard
1 Whether the employees on whose behalf the EEOC is suing are
"disabled" within the meaning of the ADA is not before us.
3

justified as a business necessity or must demonstrate a "direct
threat" in each circumstance.2
Exxon contends that because the statute does not explicitly
mandate the direct threat test for every safety-based qualification
standard, it may defend its policy under either section of the
provision. The EEOC argues that the direct threat test must be
used in every case where a safety-based requirement is at issue.
The EEOC has issued Interpretive Guidance, which generally requires
employers to meet the direct threat test:
With regard to safety requirements that screen out or
tend to screen out an individual with a disability or a
class of individuals with disabilities, an employer must
demonstrate that the requirement, as applied to the
individual, satisfies the "direct threat" standard in
� 1630.2(r) in order to show that the requirement is job-
related and consistent with business necessity.
29 C.F.R. pt. 1630, App. � 1630.15(b) & (c). This language, not
being part of the regulation, is not entitled to Chevron deference.
Rather, we will give it due deference to the extent it is
reasonable and harmonizes with the plain language of the statute,
its origin and purposes. Cf. Fort Hood Barbers Ass'n v. Herman,
2 Exxon also cites its concern for the environment as a ground
for the policy. We find this justification subsumed in the safety
motivation. Exxon further claims that tort liability should be a
separate basis for a business necessity defense. Exxon faced
massive tort liability as a result of the Valdez spill and claims
that should another incident occur, it would be subject to
heightened damages, including punitive and criminal sanctions. In
International Union v. Johnson Controls, Inc., the Supreme Court
noted that tort liability might be a valid defense if the added
costs would threaten the survival of the employer's business. 499
U.S. 187, 210-11 (1991).
4

137 F.3d 302, 307 (5th Cir. 1998) (construing deference appropriate
for an interpretive regulation).
Our review begins with the language of the provision itself.
Two aspects of the provision indicate that safety requirements are
not exclusively cabined into the direct threat test. First,
� 12113(a) speaks of qualification standards that "screen out or
tend to screen out an individual." This language suggests a
general standard applicable to all employees. In contrast, the
direct threat provision of � 12113(b), phrased in the permissive,
allows a requirement that the individual not pose a threat to
health or safety. The different approaches suggest that business
necessity applies to across-the-board rules, while direct threat
addresses a standard imposed on a particular individual.
This reading is confirmed by the language in � 12113(b)
stating that the individual shall not pose a direct threat to
"others in the workplace." This language appears odd, if we are to
accept the EEOC's interpretation that all safety-related
qualification standards are addressed by this provision. Many
employees who pose safety risks, such as a driver unqualified to
transport hazardous substances, would not pose a particular threat
to others in their workplaces.
The origin of the workplace language sheds light on what
problem � 12113(b) seeks to remedy. The direct threat provision
derives from School Board of Nassau County v. Arline, 480 U.S. 273
(1987), in which the Supreme Court construed the ADA's predecessor
5

Rehabilitation Act. See H.R. REP. NO. 101-485(II), at 56-57 (1990),
reprinted in 1990 U.S.C.C.A.N. 303, 338-39. In Arline, the
plaintiff, a teacher battling tuberculosis, was fired after
concerns arose that her students would become infected. The
teacher met all of the established qualification standards relating
to the performance of her job. The Court held that the plaintiff
was not qualified for her position because of her illness only if
she posed a significant risk to others in the workplace. See
Arline, 480 U.S. at 276, 284, 287.
When Congress codified Arline in the ADA, it kept the
workplace language but expanded coverage to individuals with
disabilities other than contagious illnesses. The legislative
history's examples of direct threat, however -- contagious
illnesses, mental disabilities, and mental illnesses -- continue
the focus on situations in which an employer might impose a safety
standard in an individual's particular case separate from the
general qualification standards required for the position. See
H.R. REP. NO. 101-485(III), at 45 (1990), reprinted in 1990
U.S.C.C.A.N. 445, 468-69 & n.37.
Neither the statute, the legislative history, nor Arline
discusses the distinct situation in which a pre-existing safety-
based qualification standard applies across-the-board for the
position, such as a requirement that a bus driver meet certain
sight requirements. Such requirements arise in safety-sensitive
jobs such as driving or working with hazardous substances. See,
6

e.g., Albertsons, Inc. v. Kirkingburg, 1999 WL 407456, at *1 (U.S.
1999) (company imposed vision requirements on truck drivers). In
cases where an employer has developed a general safety requirement
for a position, safety is a qualification standard no different
from other requirements defended under the ADA's business necessity
provision. See 29 C.F.R. � 1630.2(q). Physical requirements, for
example, such as lifting, walking or seeing, are acceptable
defenses as long as the requirements are job-related and consistent
with business necessity. See 29 C.F.R. pt. 1630, App. � 1630.10.
Requirements that may be valid as a business necessity must be
"established" by the employer to be eligible for the position. See
29 C.F.R. � 1630.2(q).
Similarly, the business necessity defense under Title VII and
the ADEA has applied to safety-based qualification standards which
tend to screen out women or certain age groups. See Smith v. City
of Des Moines, 99 F.3d 1466, 1471 (8th Cir. 1996) (applying
business necessity standard in an ADEA suit regarding safety
standards for firefighters); Levin v. Delta Air Lines, Inc., 730
F.2d 994, 997 (5th Cir. 1984) (applying business necessity in a
Title VII challenge to safety requirements affecting pregnant
women). In these areas of employment discrimination law, the
strength of the defense again turns on whether the employer can
justify the safety standard as a general rule. See Smith, 99 F.3d
at 1472-73 (examining validity of qualification standard rather
7

than experts' opinions as to plaintiff's general fitness for
position).
While no court has as yet addressed the question we answer
today, several trends in ADA case law indicate that the direct
threat test is not deployed where an employer uses a general
safety-based qualification standard applicable across-the-board.3
See, e.g., Jeffrey A. Van Detta, "`Typhoid Mary' Meets the ADA: A
Case Study of the `Direct Threat' Standard Under the Americans With
Disabilities Act," 22 HARV. J.L. PUB. POL'Y 849, 935 (1999) (noting
tendency of courts to ignore Arline in cases relating to
transportation jobs). Several cases have held that an employee is
"not qualified," without discussing direct threat, if the employee
cannot meet an established safety requirement for the position.
See, e.g., Jones v. Kerrville State Hosp., 142 F.3d 263, 265-66
(5th Cir. 1998) (holding that nurse who was unable to complete
training on safe subduing of patients was not qualified); Newman v.
Chevron U.S.A., 979 F. Supp. 1085, 1090-91 (S.D. Tex. 1997)
(gasoline truck driver with post traumatic stress disorder not
qualified). Because the "otherwise qualified" analysis and the
3 The Supreme Court also recently questioned the EEOC's claim
for exclusive use of the direct threat standard. In dicta in
Albertsons, Inc. v. Kirkingburg, Justice Souter questioned the
soundness of the EEOC's position requiring a showing of "direct
threat" to justify a safety-related qualification standard. 1999
WL 407456, at *7 n.15 (U.S. 1999). At issue in Albertsons was a
truck driver with monocular vision who failed his employer's vision
standards. The EEOC argued that the employer would have to proceed
under the direct threat standard. The Court, however, decided the
case on other grounds. See Albertsons, 1999 WL at *1, *7.
8

business necessity defense each involves whether the individual can
perform the "essential functions" of the job, see 42 U.S.C. �
12111(8); 29 C.F.R. pt. 1630, App. � 1630.10, these courts'
approach mirrors the business necessity standard.
We have found nothing in the statutory language, legislative
history or case law that persuades that the direct threat provision
addresses safety-based qualification standards in cases where an
employer has developed a standard applicable to all employees of a
given class. We hold that an employer need not proceed under the
direct threat provision of � 12113(b) in such cases but rather may
defend the standard as a business necessity. 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 so holding, we note that direct threat and business
necessity do not present hurdles that comparatively are inevitably
higher or lower but rather require different types of proof.
Direct threat focuses on the individual employee, examining the
specific risk posed by the employee's disability. See 29 C.F.R. �
1630.2(r). In contrast, business necessity addresses whether the
qualification standard can be justified as an across-the-board
requirement. Either way, the proofs will ensure that the risks are
real and not the product of stereotypical assumptions.
In evaluating whether the risks addressed by a safety-based
qualification standard constitute a business necessity, the court
9

should take into account the magnitude of possible harm as well as
the probability of occurrence. The acceptable probability of an
incident will vary with the potential hazard posed by the
particular position: a probability that might be tolerable in an
ordinary job might be intolerable for a position involving atomic
reactors, for example. In short, the probability of the occurrence
is discounted by the magnitude of its consequences. In Exxon's
case, the court should thus consider the magnitude of a failure in
assessing whether the rate of recidivism among recovering substance
abusers constitutes a safety risk sufficient for business
necessity.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
10