Cite as: 536 U. S. 73 (2002)
Opinion of the Court
whether an employer would actually be liable under OSHA for hiring an individual who knowingly consented to the particular dangers the job would pose to him, see Brief for United States et al. as Amici Curiae 19, n. 7, there is no denying that the employer would be asking for trouble: his decision to hire would put Congress's policy in the ADA, a disabled individual's right to operate on equal terms within the workplace, at loggerheads with the competing policy of OSHA, to ensure the safety of "each" and "every" worker. Courts would, of course, resolve the tension if there were no agency action, but the EEOC's resolution exemplifies the substantive choices that agencies are expected to make when Congress leaves the intersection of competing objectives both imprecisely marked but subject to the administrative leeway found in 42 U. S. C. § 12113(a).
Nor can the EEOC's resolution be fairly called unreasonable as allowing the kind of workplace paternalism the ADA was meant to outlaw. It is true that Congress had paternalism in its sights when it passed the ADA, see § 12101(a)(5) (recognizing "overprotective rules and policies" as a form of discrimination). But the EEOC has taken this to mean that Congress was not aiming at an employer's refusal to place disabled workers at a specifically demonstrated risk, but was trying to get at refusals to give an even break to classes of disabled people, while claiming to act for their own good in reliance on untested and pretextual stereotypes.5 Its regu-5 Echazabal's contention that the Act's legislative history is to the contrary is unpersuasive. Although some of the comments within the legislative history decry paternalism in general terms, see, e. g., H. R. Rep. No. 101-485, pt. 2, p. 72 (1990) ("It is critical that paternalistic concerns for the disabled person's own safety not be used to disqualify an otherwise qualified applicant"); ADA Conf. Rep., 136 Cong. Rec. 17377 (1990) (statement of Sen. Kennedy) ("[A]n employer could not use as an excuse for not hiring a person with HIV disease the claim that the employer was simply 'protecting the individual' from opportunistic diseases to which the individual might be exposed"), those comments that elaborate actually express the more pointed concern that such justifications are usually pretextual,
85Page: Index Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: October 4, 2007