Opinion of the Court
dating the ADA, which recognized an employer's right to consider threats both to other workers and to the threatening employee himself. Because the ADA defense provision recognizes threats only if they extend to another, Echazabal reads the statute to imply as a matter of law that threats to the worker himself cannot count.
The argument follows the reliance of the Ninth Circuit majority on the interpretive canon, expressio unius est exclusio alterius, "expressing one item of [an] associated group or series excludes another left unmentioned." United States v. Vonn, 535 U. S. 55, 65 (2002). The rule is fine when it applies, but this case joins some others in showing when it does not. See, e. g., ibid.; United Dominion Industries, Inc. v. United States, 532 U. S. 822, 836 (2001); Pauley v. BethEnergy Mines, Inc., 501 U. S. 680, 703 (1991).
The first strike against the expression-exclusion rule here is right in the text that Echazabal quotes. Congress included the harm-to-others provision as an example of legitimate qualifications that are "job-related and consistent with business necessity." These are spacious defensive categories, which seem to give an agency (or in the absence of agency action, a court) a good deal of discretion in setting the limits of permissible qualification standards. That discretion is confirmed, if not magnified, by the provision that "qualification standards" falling within the limits of job relation and business necessity "may include" a veto on those who would directly threaten others in the workplace. Far from supporting Echazabal's position, the expansive phrasing of "may include" points directly away from the sort of exclusive specification he claims. United States v. New York Telephone Co., 434 U. S. 159, 169 (1977); Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U. S. 95, 100 (1941).3
3 In saying that the expansive textual phrases point in the direction of agency leeway we do not mean that the defense provisions place no limit on agency rulemaking. Without deciding whether all safety-related qualification standards must satisfy the ADA's direct-threat standard, see Al-Page: Index Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: October 4, 2007