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Norman Daniels, PhD

The author is with the Harvard School of Public Health, Boston, Mass.

Correspondence: Requests for reprints should be sent to Norman Daniels, PhD, Harvard School of Public Health, Bldg 1, Room 1104C, 655 Huntington Ave, Boston, MA 02115 (e-mail: ndaniels{at}hsph.harvard.edu).

	ABSTRACT

TOP ABSTRACT INTRODUCTION THE SUPREME COURT RULING ANTIPATERNALISM AND THE ADA CONSENT TO RISK AND... THE CONFLICT RESTATED IS "INDIVIDUALIZED MEDICAL... References

 

The Supreme Court, in Chevron v Echazabal, ruled that risks to a disabled worker, if established by an individualized medical assessment, can disqualify the worker from protections offered by the Americans with Disabilities Act (ADA). This decision rejected the antipaternalist position of ADA advocates that workers with disabilities should be able to determine, through their own consent, the risks they will take.

Such strong antipaternalism may not be compatible with the underlying justification for the protection of workers against health hazards. Stringent regulation of workplace hazards involves restricting the scope of consent to risk.

Resolution of this conflict will depend on more careful examination of the degree to which individualized medical assessments avoid stereotyping and bias.

	INTRODUCTION

TOP ABSTRACT INTRODUCTION THE SUPREME COURT RULING ANTIPATERNALISM AND THE ADA CONSENT TO RISK AND... THE CONFLICT RESTATED IS "INDIVIDUALIZED MEDICAL... References

 
IN THIS ARTICLE, I FOCUS on some of the ethical issues raised by the Supreme Court’s recent decision in Chevron USA Inc v Echazabal,¹ leaving legal interpretations to those more qualified to make them. Echazabal, an oil refinery worker with hepatitis C, claimed that Chevron violated his rights under the Americans with Disabilities Act (ADA) when it withdrew a job offer because medical evidence showed that he was at high risk for exposure to workplace toxins. Chevron argued that significant risks to Echazabal’s safety disqualified him from ADA protection, because Chevron has strong obligations to protect workers’ safety and health under the Occupational Safety and Health Act of 1970 (OSH Act).

What are the ethical conflicts associated with this case? The ADA is aimed at ensuring equal opportunity for people with disabilities.^2,3 By protecting workers against risks to their health, the OSH Act also aims at protecting equality of opportunity, in that poor health undermines opportunity.⁴ Do the goals of these 2 pieces of opportunity-protecting legislation conflict here? In protecting workers with disabilities, the ADA, on its face, would appear to take a strong stand against invoking paternalism to "protect" workers against risks, preferring to allow workers to determine what risks they face rather than allowing discrimination to masquerade as paternalism.

Nevertheless, the Equal Employment Opportunity Commission (EEOC) did issue an interpretive ruling (29 CFR 1613.702[f], 1990) permitting employers to refuse to hire workers when employment might pose a significant risk to them. Such a determination had to be based on an individualized assessment and could not rest on stereotypical assumptions about classes of workers. OSH legislation, on the other hand, vastly restricts the range of risks to which workers can consent, preferring government regulation of acceptable risks to individual consent as a way of distributing the benefits and burdens of protecting population health. Disability rights advocates reject the EEOC ruling and read the ADA as antipaternalistic. Is there a deep conflict between disability rights advocates and proponents of worker protection who champion the OSH Act in terms of attitudes toward paternalism and individual consent to risk?

	THE SUPREME COURT RULING

TOP ABSTRACT INTRODUCTION THE SUPREME COURT RULING ANTIPATERNALISM AND THE ADA CONSENT TO RISK AND... THE CONFLICT RESTATED IS "INDIVIDUALIZED MEDICAL... References

 
In the Chevron v Echazabal case, the Supreme Court’s ruling was that the ADA does not require an employer to ignore risks to an individual’s health in instances in which a disability exists. This decision upheld the EEOC’s interpretation of the act and rejected the views of those who had championed the enactment of the ADA. The court held that risk had to be determined on the basis of an individual medical assessment and not on the basis of a stereotypical judgment about the perceived risks faced by people with a particular disability.

Critics of the Supreme Court ruling argue that the legislative language of the ADA explicitly noted risks to third parties as acceptable grounds for disqualifying workers with disabilities from ADA protection but deliberately omitted any mention of risks to the workers themselves. The intention behind the omission was to exclude consideration of such risks. Allowing consideration of claims regarding risks to the individual in question to be considered would have opened the door to the kinds of stereotypical assumptions about people with disabilities that had unfairly reduced their employment opportunities in the past. All can agree that a primary intention of this law was to prevent stereotyping. Consequently, there was every reason to view the specific mention of risks to third parties as a way of excluding considerations of risks to the workers themselves. The EEOC guidelines, which the Supreme Court upheld, thus eviscerated the antipaternalistic intent of the ADA itself.

Chevron and its allies argued, however, that congressional intent could not have precluded individualized medical assessments of risks to individuals. How could the ADA force Chevron to ignore worker protections imposed by the OSH Act when these protections create a business necessity to consider worker safety? (The irony of large corporations standing up for stringent worker protections is noted by Ron Bayer in this issue.) Congress could not have intended that the ADA language exclude compliance with OSH Act safety standards and EEOC regulations. Thus, the fact that only risks to others were explicitly mentioned as an example of grounds for disqualifying workers from ADA does not mean that risks to workers themselves were excluded as grounds for disqualification.

We have, then, a rather basic conflict between legitimate goals of workplace environmental protection legislation and the intent to ward off discriminatory behavior aimed at otherwise qualified workers who have disabilities and are entitled to reasonable accommodation. To see the full force of the conflict, let us back up and reconsider the ethical underpinnings of each line of reasoning.

	ANTIPATERNALISM AND THE ADA

TOP ABSTRACT INTRODUCTION THE SUPREME COURT RULING ANTIPATERNALISM AND THE ADA CONSENT TO RISK AND... THE CONFLICT RESTATED IS "INDIVIDUALIZED MEDICAL... References

 
Many advocates for people with disabilities argue that we should allow these individuals to decide what risks they want to face. They assert that this right to consent is a key protection afforded by the ADA. Third-party (i.e., employer) judgments about the acceptability of risks to which workers with disabilities are exposed should be discounted because they involve social stereotyping. Social stereotyping historically has led to a pattern of unjustifiable paternalism and infantalizing attitudes toward those with disabilities, protecting them against imagined risks. Employers (and schools and other institutions, as well) had assumed the role of determining what was best for people with disabilities, cloaking their concern in the robes of paternalism. But these robes often concealed prejudice and narrow economic interests. In short, paternalism had undermined opportunity and worked only to the benefit of the discriminatory employer.

There is a further moral underpinning to this argument aside from the need to avoid the harms of misdirected paternalism: individuals with disabilities were being deprived of the opportunity to assume the standard workplace risks that others were permitted to assume. Workers with disabilities have the right to be treated in the same way as other workers who consent to standard risks, but the case is very different when there are real, not exaggerated, risks to third parties. In instances in which individuals with disabilities pose risks to others who have not, by definition, chosen to place themselves at risk, excluding them from ADA protections is justified as a way of preventing the imposition of unfair burdens.

	CONSENT TO RISK AND OSHA STANDARDS

TOP ABSTRACT INTRODUCTION THE SUPREME COURT RULING ANTIPATERNALISM AND THE ADA CONSENT TO RISK AND... THE CONFLICT RESTATED IS "INDIVIDUALIZED MEDICAL... References

 
By insisting on individual consent to risk as a protection against stereotyping, advocates for people with disabilities run into conflict with the ethical basis of stringent workplace health hazard regulations. To see this point, we must consider the ethical underpinnings of the requirement built into the OSH Act that the workplace be made as safe as is "technologically feasible." This requirement was upheld as the governing criterion for OSHA’s health and safety standards in American Textile Manufacturers Institute v Donovan,⁵ commonly known as the "Cottondust case" in reference to the main airborne hazard involved in the standards. Employers had opposed such a criterion as too stringent and requested that the Supreme Court instead uphold a "cost–benefit" standard. In reply, the court stated in 1981 that Congress had done its own cost–benefit analysis and decided that seeking technological feasibility was indeed cost beneficial.

One key ethical issue in the setting of workplace health and safety standards concerns the amount of leeway, or "choice space," to allow workers in consenting to risk as a method for determining acceptable levels of risk in the workplace. To simplify the point, consider 3 different degrees of freedom that might be given to consent to risk in the form of hazard pay negotiation. First, the greatest degree of freedom would be given to workers and employers to negotiate hazard pay for risks if there were no safety regulations that imposed cleanup costs, such as those involved in reducing cotton dust in workplaces, on employers. Because the costs that regulations would impose are not present, the larger wage package that is available increases the choice space left for consent as a mechanism for distributing the benefits and burdens of risk taking.

Second, the choice space is reduced if employers must clean up the workplace to the extent that it is cost beneficial to do so, that is, to the point at which the cost of cleanup does not exceed the monetary value of the health benefit achieved. Such a cost–benefit standard for cleanup would avoid imposing burdens on third parties to pay for worker health costs that result from unregulated workplaces. The costs of meeting this standard would leave a smaller wage packet, and thus a reduced choice space, in which consent to risk could be exercised.

Finally, the smallest choice space is created by the much more stringent technological feasibility standard contained in the OSH Act. This rigorous standard imposes even higher costs of cleanup (we may suppose) on employers than the cost–benefit standard. The effect is to limit negotiations for hazard pay even more than would the cost–benefit standard. In short, the more stringent the standard, the less space is left for individual consent to risk to serve as a method for distributing the benefits and burdens of protecting population health.

What would justify, ethically, the most stringent standard? Why not simply trust the judgment of typical workers that the benefits to them are worth the risks in question, at least once the less stringent cost–benefit standard is achieved? Is it not the case that the technological feasibility standard is unacceptably paternalistic because it so drastically limits worker consent to risk as a mechanism for distributing the benefits and burdens of risk taking?

One way to justify the stringent standard would be to claim that the choices of typical workers for hazard pay are, if not coerced, then at least unfairly restricted. The range of opportunities open to these workers—for education, job training, and mobility—is narrower than what we might think is just or fair. Although these workers are not, strictly speaking, coerced, their choice of what risks to take is made against a distribution of options that is arguably unfair or unjust. Let us say that people whose options are unjustly or unfairly restricted are "quasicoerced."⁴ Because such quasi-coercion reduces the extent to which their choices are voluntary, it is permissible to act paternalistically toward them and to protect them against the risks they may be quasi-coerced into taking, whereas this would not be the case if their choices were fully voluntary or autonomous. (Note that this justification for the most stringent standard would be removed if opportunities were fairly distributed in society, a conclusion that some public health advocates might not accept.)

It is worth noting one objection made to my raising the issue of paternalism here.⁶ This objection, pressed on me by Leslie Frances (written communication, August 2002), rests on a conceptual point: an act should be thought of as a pure form of paternalism only if it is aimed at promoting the interests of those whose action or liberty it limits. An action or policy that limits people’s actions or liberty, but does so to protect third parties or to produce some other good result, does not represent paternalism in the strict interpretation of the term. If, for example, the goal is to achieve a more just social arrangement, such as a more level playing field between workers and employers, then the action or policy should not be viewed as a pure form of paternalism.

This issue can be viewed in another way. The goal of pure paternalism is to make the people affected by the act in question better off. Its motivation is beneficence: doing good for those affected. If the purpose of an act or policy is to promote other goals, including that of establishing more just arrangements, then the act or policy does not represent paternalism, at least in its strong form.

The objection raised by Frances seems to derive power from my own argument. I have claimed that the point of the strict OSH regulation is to eliminate the effect of quasi-coercion and not necessarily to pursue a view of what is in workers’ best interests. Indeed, whether they are quasi-coerced or not, individual workers might correctly calculate, at least in some cases, that more hazard pay might make them (and their families) better off than more stringent regulation.

Nevertheless, we might think the situation unjust, and the consequences for population health in general unacceptable, if we continue to rely on consent when it is quasi-coerced. According to my argument, reducing the range in which people can consent to risk is undertaken for purposes of justice and does not qualify as genuine paternalism. No doubt, some people affected by the restriction on their liberty to consent to risk would protest that the stringent workplace regulation smells and feels like paternalism, whatever the fine points about the intention or aim being one of justice.

Frances’s objection misses my point in framing the issue as one involving paternalism. I agree, of course, that the need to reduce quasi-coercion and its effects is a matter of justice. Indeed, I have defined quasi-coercion as an unfair restriction of options. My analysis of the plight of the typical worker, however, has implications even for the antipaternalist who, perhaps using the smell test, insists on viewing restrictions on consent to risk taking as paternalist.

Because advocates for the ADA who oppose the Chevron ruling cast the problem as one of unjustifiable paternalism, my argument should find a foothold in the dialogue. Even strong antipaternalists should admit that paternalism is justifiable when people are incompetent to choose or cannot make voluntary choices. Because quasicoerced choices are not voluntary in the requisite sense, paternalism is justifiable. Here a requirement of justice coincides with justifiable paternalism.

	THE CONFLICT RESTATED

TOP ABSTRACT INTRODUCTION THE SUPREME COURT RULING ANTIPATERNALISM AND THE ADA CONSENT TO RISK AND... THE CONFLICT RESTATED IS "INDIVIDUALIZED MEDICAL... References

 
This analysis of the rationale for stringent OSH regulation sets up the conflict described earlier involving the ADA, at least as the ADA is interpreted by those who disagree with the Supreme Court ruling in the Chevron v Echazabal case. According to this ethical justification of the ruling in the Cottondust case, we can ignore the consent to risk that would be given by "quasicoerced" workers, and we should require instead that employers spend above what it is cost beneficial to spend to protect workers against having to make quasicoerced choices. But the ADA, according to advocates for those with disabilities, stipulates that otherwise qualified workers with disabilities (many of whom may themselves be quasi-coerced, especially if the ADA does not adequately protect them) should be able to consent to the significantly higher risks they face (or at least Echazabal should have been able to do so).

Let us assume, for the sake of argument, that the facts show that Echazabal faces significantly higher risks of serious illness or death from exposure to toxins because of his hepatitis condition, that Chevron has met the OSHA-mandated technologically feasibility standard, and that Echazabal’s extra risk could be avoided only if he were transferred to a job that did not entail exposure. Nevertheless, his advocates argue, we should allow him to consent to these higher risks because he is "otherwise qualified" in that he imposes risks not on others but only on himself. (It is a red herring to say that if Echazabal is at risk, then so are all workers, and the workplace should be made clean enough to protect them all; we are supposing that workers without Echazabal’s condition are protected to the level that is technologically feasible.) To put it perhaps too bluntly, the ADA, according to this interpretation, stipulates that we should trust what may be quasi-coerced decisions so as to avoid the burden imposed by discrimination; however, the OSH standards upheld by the Supreme Court discount consent to such risks and disallow such risk taking.

We need to clarify just how strongly critics of the Chevron ruling oppose denying Echazabal his opportunity to consent to risk. Consider a case in which another worker is, by hypothesis, not disabled in broader life functions, as Echazabal is, but has a specific supersensitivity to a specific toxin in a type of workplace, and the consequences are a high risk for serious illness or death. (I am supposing, at least for the sake of argument, that a window washer who develops acrophobia is not disabled, because many other jobs are open to him or her and no major life function is interfered with by the acrophobia; the same, I am supposing, holds for this supersensitivity or allergy to the toxin.) Suppose further that the workplace meets OSH Act standards for that toxin and that all workers are screened for this supersensitivity. Those failing the screening test are not hired, even though some or all of them would consent to the risk. Should we accept the willingness of supersensitive workers to take the risk, or should we exclude them because of the high risks to their own health?

These supersensitive workers cannot be protected, as most workers can, by the technological feasibility standard. Their risk is what would have been faced by most workers in a much dirtier workplace than what the OSH Act standard allows, even had they wanted to consent. If advocates for Echazabal insist that we rely on consent to risk for these nondisabled but supersensitive workers, then their view is in clear conflict with the ethical underpinnings of the OSH Act. If, however, their insistence on consent to risk for Echazabal rests completely on his status as a worker with a bona fide disability, the conflict with the OSH Act is more limited. Their concern is only with warding off paternalism that harms people with disabilities; they are not insisting that we always defer to consent to risk for all workers, even those who are quasi-coerced. This more limited conflict is less problematic and may be resolvable.

	IS "INDIVIDUALIZED MEDICAL DETERMINATION" DISCRIMINATORY?

TOP ABSTRACT INTRODUCTION THE SUPREME COURT RULING ANTIPATERNALISM AND THE ADA CONSENT TO RISK AND... THE CONFLICT RESTATED IS "INDIVIDUALIZED MEDICAL... References

 
Can we resolve the ethical conflict here, leaving aside issues of legal interpretation? A basic issue that requires more careful examination is just what happens if we allow individualized medical determinations of risk. Remember, the Supreme Court argued that such individual medical assessments meet the burden of avoiding stereotyping and unacceptable discrimination. If this form of risk determination indeed avoids the dangers of stereotyping, then perhaps we should agree with the 9–0 Supreme Court decision and resolve the conflict in favor of not allowing consent to risks that far exceed OSH Act standards.

However, the great concern of advocates for those with disabilities, including myself, is that this form of risk determination can be misused and abused. It could end up providing an individualized, scientific cover to stereotyping and thus discrimination. Who will be forced to undergo such risk assessment, and what kinds of bias will be brought to that task? If it is more likely that we will engage in individualized medical tests in a way that tends to single out people with disabilities for special exclusion, then it may indeed be better to protect the broad class of people with disabilities than to guard against the infrequent excessive exposure to risk that some of them may face.

This argument does not resolve the issue, but it points to the weight that rests on acceptance of individualized medical assessments in the Supreme Court’s judgment. If we can protect the opportunity of workers with disabilities without having to grant them a right to consent to risks to which we correctly do not allow others to consent, then we can avoid the head-on conflict described earlier. But if there is no way to avoid further discrimination against a vulnerable group, we may be better off accepting the limited conflict with good public health protection in general.

	Footnotes

 
Peer Reviewed

Accepted for publication November 17, 2002.

	References

TOP ABSTRACT INTRODUCTION THE SUPREME COURT RULING ANTIPATERNALISM AND THE ADA CONSENT TO RISK AND... THE CONFLICT RESTATED IS "INDIVIDUALIZED MEDICAL... References

 
1. Chevron USA Inc v Echazabal, 122 SCt 2045 (2002).

2. Daniels N. Mental disabilities, equal opportunity, and the ADA. In: Bonnie RJ, Monahan J, eds. Mental Disorder, Work Disability, and the Law. Chicago, Ill: University of Chicago Press; 1997:281–297.

3. Frances L, Silvers A. Americans With Disabilities: Exploring Implications of the Law for Individuals and Institutions. New York, NY: Routledge; 2000.

4. Daniels N. Just Health Care. New York, NY: Cambridge University Press; 1985.

5. 452 US 490 (1981).

6. Dworkin G. Paternalism. In: Sartorius R, ed. Paternalism. Minneapolis, Minn: University of Minnesota Press; 1983:19–34.

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