Chevron U. S. A. Inc. v. Echazabal, 536 U.S. 73, 12 (2002)

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84

CHEVRON U. S. A. INC. v. ECHAZABAL

Opinion of the Court

would threaten others outside the workplace? If Typhoid Mary had come under the ADA, would a meat packer have been defenseless if Mary had sued after being turned away? See 42 U. S. C. 12113(d). Expressio unius just fails to work here.

B

Since Congress has not spoken exhaustively on threats to a worker's own health, the agency regulation can claim adherence under the rule in Chevron, 467 U. S., at 843, so long as it makes sense of the statutory defense for qualification standards that are "job-related and consistent with business necessity." 42 U. S. C. 12113(a). Chevron's reasons for calling the regulation reasonable are unsurprising: moral concerns aside, it wishes to avoid time lost to sickness, excessive turnover from medical retirement or death, litigation under state tort law, and the risk of violating the national Occupational Safety and Health Act of 1970, 84 Stat. 1590, as amended, 29 U. S. C. 651 et seq. Although Echazabal claims that none of these reasons is legitimate, focusing on the concern with OSHA will be enough to show that the regulation is entitled to survive.

Echazabal points out that there is no known instance of OSHA enforcement, or even threatened enforcement, against an employer who relied on the ADA to hire a worker willing to accept a risk to himself from his disability on the job. In Echazabal's mind, this shows that invoking OSHA policy and possible OSHA liability is just a red herring to excuse covert discrimination. But there is another side to this. The text of OSHA itself says its point is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions," 651(b), and Congress specifically obligated an employer to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees," 654(a)(1). Although there may be an open question

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