Cite as: 536 U. S. 73 (2002)
Opinion of the Court
itation Act regulation pairing self and others, the congressional choice to speak only of threats to others would still be equivocal. Consider what the ADA reference to threats to others might have meant on somewhat different facts. If the Rehabilitation Act had spoken only of "threats to health" and the EEOC regulation had read that to mean threats to self or others, a congressional choice to be more specific in the ADA by listing threats to others but not threats to self would have carried a message. The most probable reading would have been that Congress understood what a failure to specify could lead to and had made a choice to limit the possibilities. The statutory basis for any agency rule-making under the ADA would have been different from its basis under the Rehabilitation Act and would have indicated a difference in the agency's rulemaking discretion. But these are not the circumstances here. Instead of making the ADA different from the Rehabilitation Act on the point at issue, Congress used identical language, knowing full well what the EEOC had made of that language under the earlier statute. Did Congress mean to imply that the agency had been wrong in reading the earlier language to allow it to recognize threats to self, or did Congress just assume that the agency was free to do under the ADA what it had already done under the earlier Act's identical language? There is no way to tell. Omitting the EEOC's reference to self-harm while using the very language that the EEOC had read as consistent with recognizing self-harm is equivocal at best. No negative inference is possible.
There is even a third strike against applying the expression-exclusion rule here. It is simply that there is no apparent stopping point to the argument that by specifying a threat-to-others defense Congress intended a negative implication about those whose safety could be considered. When Congress specified threats to others in the workplace, for example, could it possibly have meant that an employer could not defend a refusal to hire when a worker's disability
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