United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

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The fact that the complainant's impairment may impose a risk of workman's compensation claim is not an acceptable justification for imposing a particular job requirement. OFCCP v. E.E. Black, Ltd., 77-OFCCP-7R, Assistant Secretary for Employment Standards Dec. and Order, February 26, 1979, slip op. at 20, aff'd, E.E. Black v. Marshall, 497 F. Supp. 1088 (D. Hi. 1980), E. E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).

The possibility of future injury may in some cases legitimately be used to screen out qualified handicapped individuals. E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1104 (D. Hi. 1980), reconsideration denied, E.E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).

Complainant who was fired because he may have exposed the employer to the risk of higher premiums for workman's compensation insurance if he reinjured himself upon undertaking a more strenuous position was not discriminated against. OFCCP v. Shuford Mills Inc., 80-OFCCP-30, ALJ Rec. Dec., May 26, 1981, slip op. at E-3, dismissal aff'd without opinion, Deputy Under Secretary for Employment Standards, September 17, 1985.

Statistical correlation between a characteristic of an individual and the frequency of some undesirable consequence can be used as a standard for qualification only if no direct individual test would distinguish the able from the unable. OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec., November 9, 1982, slip op. at 49; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Qualification for a job must be measured at the time of the discriminatory act. Nonimminent risk of future injury does not make an otherwise capable person incapable. Id.; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

One consideration which justifies discrimination based on mere statistical probability has been the degree of risk to human life. Id. at 54; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

An indefinite risk of future orthopedic limitations does not make an individual unqualified. Id. at 85; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

When the purpose of employment criteria is to minimize the risk of massive loss of property both to the defendant and the public, the employer has wide discretion to determine if its criteria can lessen this risk. Id. at 111; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

If an employer bases its failure to employ a handicapped person because of a risk of future injury, the employer must show that there is a reasonable probability of injury to the complainant or his co-workers, not just a possibility of injury. OFCCP v. American Commercial Barge Line, 84-OFC-13, ALJ Rec. Dec. and Order, September 30, 1986, slip op. at 30-31, rev'd on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Final Decision and Order.

To determine where there is a reasonable probability of injury, the following factors should be considered: the likelihood and imminence of injury. OFCCP v. Yellow Freight Systems, Inc., 84-OFC-17, ALJ Rec. Dec. and Order, November 6, 1986, slip op. at 22-23, aff'd, Acting Assistant Secretary for Employment Standards Final Dec. and Order of Remand, July 27, 1993; Acting Assistant Secretary Reconsideration of Final Decision and Order, December 22, 1993; Order Approving Settlement and Dismissal, April 20, 1994.

A determination of whether there is a reasonable probability of substantial harm should not be based merely upon an employer's subjective evaluation or, except in cases of a most apparent nature, merely on medical reports. The employer must also consider the individual's work history and comprehensive medical history. Id. at 23, aff'd, Acting Assistant Secretary for Employment Standards Final Decision and Order of Remand, July 27, 1993; Acting Assistant Secretary Reconsideration of Final Decision and Order, December 22, 1993; Order Approving Settlement and Dismissal, April 20, 1994.

The automatic use of x-ray results to disqualify applicants because of potential back injuries, without sufficient examination of the individuals actual medical histories and capabilities to perform the job in question, is a violation of Section 503. OFCCP v. Texas Utilities Generating Company, 85-OFC-13, ALJ Rec. Dec. and Order, March 2, 1988, slip op. at 9, remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, August 25, 1994; Consent Decree, April 15, 1996.

Complainant's four year employment history as a truck driver, subsequent to her denial of employment by the defendant, supports the conclusion that there was no imminent risk that she would suffer back problems. OFCCP v. Texas Industries Inc., 80-OFCCP-28, Assistant Secretary for Employment Standards Dec. and Order, June 7, 1988, slip op. at 22, rev'g, ALJ Rec. Dec., June 10, 1981, remanded on other grounds, Assistant Secretary for Employment Standards Order of Remand and Stay of Enforcement, September 27, 1990, ALJ Decision and Order on Remand, March 11, 1991; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

The ALJ relied on medical tests performed subsequent to the alleged discriminatory act, identifying the possibly serious nature of complainant's back condition, to find that he was properly disqualified as an unacceptable worker's compensation risk. OFCCP v. Yellow Freight System, Inc., 79-OFCCP-7, ALJ Rec. Dec. on Remand, August 26, 1988, slip op. at 65, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards, August 24, 1992; Consent Decree, February 2, 1993.

The defendant should have balanced the privilege of the applicant to choose his work against the duty of the defendant not to sanction the development of disabilities on the job in evaluating applicants. The defendant's rejection of two applicants with back conditions of serious or dubious nature was a proper exercise of paternalism, whereas defendant's rejection of two applicants with mild back conditions was not. Id. at 66; Consent Decree, February 2, 1993.

The fundamental issue here is the same as in Texas Industries, whether the defendant's decision to reject a job applicant with epilepsy was justified because there was a "reasonable probability of substantial harm" posed by his handicap. OFCCP v. PPG Industries, Inc., 86-OFC-9, Deputy Assistant Secretary for Employment Standards Final Dec. and Remand Order on Remedy, January 9, 1989, slip op. at 16, dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

The analysis of risk of future injury must be an objective evaluation based on facts the employer knew or should have known at the time the decision to reject the applicant was made. Id. at 17; dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

The record demonstrates that the PPG officials involved in the decision not to hire the intervenor did not fulfill their duty to "gather all relevant information . . ." [citation omitted]. Their decision was based on stereotypes about epileptics in general and unchecked assumptions about the intervenor (complaint) in particular. Id. at 22-23; dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

The defendant violated Section 503 when it refused to hire the intervenor because of his epilepsy and the defendant rejected the intervenor because it believed he presented an "elevated risk," although the evidence at the time would have shown that the elevated risk, if any, was not significant and there was no reasonable probability of substantial harm. Id. at 30; dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

The defendant cannot shield itself from liability by the kind of wholesale, uncritical reliance on medical opinions it has demonstrated in this case. Contractor officials deferred to plant physicians and a second medical opinion but made no further inquires. Id. at 28; dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

The complainant poses a significant risk in the workplace, because by his own admission, and as shown by his medical records, he has never maintained proper control of his blood sugar level during the almost twenty years he has suffered from diabetes. OFCCP v. United Airlines, Inc., 86-OFC-12, ALJ Rec. Dec. and Order, February 3, 1989, slip op. at 10, remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, December 22, 1994.

If the complainant does pose a significant risk of injury or harm in the workplace and reasonable accommodation cannot eliminate that risk, then he is not "otherwise qualified for the job, and United was not obligated to place him in the workplace. Id.; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, December 22, 1994.

Given its hazardous work environment, United's policy is reasonably related to maximizing safety in the workplace. The policy does not allow an employee who has a significant medical risk of either unconsciousness or decreased consciousness to perform certain critical jobs in the company. Id. at 12; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, December 22, 1994.

An insulin dependent diabetic presents a significant risk of safety on airport ramp. Id. at 6; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, December 22, 1994.

The defendant failed to establish a business necessity defense for its rejection of the complainant for a carpenter's position due to his high blood pressure because the risk of future injury was merely elevated -- a remote possibility. OFCCP v. WMATA, 84-OFC-8, Acting Assistant Secretary for Employment Standards Final Dec. and Remand Order, March 30, 1989, slip op. at 23, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

Under §503, like under §501, an employer must show a reasonable probability of substantial harm to establish a business necessity defense. OFCCP v. Norfolk and Western Railway Co., 88-OFC-4, ALJ Rec. Dec. and Order, June 28, 1989, slip op. at 20, stipulated dismissal, November 13, 1991.

The fact that neither physician who testified could specify how imminent the danger of stroke or congestive heart attack would have been for the complainant, had she hired, is not dispositive. The appropriate standard [of reasonable probability of substantial harm] must be considered in light of the fact that congestive heart failure and stroke are life threatening. Id. at 22.

An employer meets the burden of demonstrating a reasonable probability of substantial harm when evidence is offered that a physician concludes that the complainant was at risk of a stroke or congestive heart attack in the short term. Id.

Contractor failed to gather sufficient information as required under Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985), to make a reasoned judgement on whether employee's perceived impairment (lumbar lordosis) prevented him from performing the essential requirements of the job without a reasonable probability of substantial harm to himself or others. Thus, contractor failed

to carry its burden and establish that employee was not a qualified handicapped individual. OFCCP v. Louisville Gas & Electric Co., 88-OFC-12, ALJ Rec. Dec. and Order, January 29, 1990, slip op. at 11, aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1992.

If defendant shows that employee was not qualified to perform the essential functions of the job without a reasonable probability of substantial harm, court must determine whether reasonable accommodation could be made, without undue hardship, sufficient to enable the applicant to perform the essential requirements of the job without a reasonable probability of substantial injury. Ibid., aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1992.

To successfully raise a risk of future injury defense under Section 501, the employer must show a reasonable probability of substantial harm, not an elevated risk. The standard under Section 503 is the same. OFCCP v. Keebler Co., 87-OFC-20, ALJ Rec. Dec. and Order, March 4, 1991, slip op. at 14; remanded on other grounds, Assistant Secretary Decision and Order of Remand, December 21, 1994; ALJ Recommended Decision and Order, July 20, 1995; affirmed, Administrative Review Board Final Decision and Order, September 4, 1996; Motion for Reconsideration pending.

Because all production attendants are at risk of injury, the question is not whether the complainant would be at risk of injury in that job, but whether her handicap (epilepsy) increases the level of risk to the point where there is a "reasonable probability of substantial harm." Ibid.; remanded on other grounds, Assistant Secretary Decision and Order of Remand, December 21, 1994; ALJ Recommended Decision and Order, July 20, 1995; affirmed, Administrative Review Board Final Decision and Order, September 4, 1996; Motion for Reconsideration pending.

The fact that complainant experienced an epileptic seizure in a very dangerous area of the plant, her seizures caused her to freeze in place, and walk and bump into things, and her job involved work around hazardous machinery, compelled the conclusion that her seizures presented a serious and imminent threat of injury. Ibid.; remanded on other grounds, Assistant Secretary Decision and Order of Remand, December 21, 1994; ALJ Recommended Decision and Order, July 20, 1995; affirmed, Administrative Review Board Final Decision and Order, September 4, 1996; Motion for Reconsideration pending.

ALJ failed to credit testimony of medical experts and complainant that complainant's auras would allow her adequate time to remove herself from the dangers of the work place prior to a seizure. Id. at 15-17; remanded on other grounds, Assistant Secretary Decision and Order of Remand, December 21, 1994; ALJ Recommended Decision and Order, July 20, 1995; affirmed, Administrative Review Board Final Decision and Order, September 4, 1996; Motion for Reconsideration pending.

Opinion of an expert on occupational medicine is entitled to greater weight than expert on epilepsy with regard to opinion about whether complainant's auras can afford her time to protect herself from work place hazards and with regard to the degree of danger posed to complainant by the various types of equipment in the plant. Id. at 17, n.5; remanded on other grounds, Assistant Secretary Decision and Order of Remand, December 21, 1994; ALJ Recommended Decision and Order, July 20, 1995; affirmed, Administrative Review Board Final Decision and Order, September 4, 1996; Motion for Reconsideration pending.

Complainant's employment as a production attendant would pose a reasonable probability of substantial harm to the complainant as a result of her epilepsy, based on an evaluation of the hazards inherent in the contractor's production attendant job, the manner in which complainant's epilepsy is expressed in auras and seizures and viewed in the context of documented instances of complainant's actual on-the-job seizures. Id. at 17, n.6; remanded on other grounds, Assistant Secretary Decision and Order of Remand, December 21, 1994; ALJ Recommended Decision and Order, July 20, 1995; affirmed, Administrative Review Board Final Decision and Order, September 4, 1996; Motion for Reconsideration pending.

Because the medical evidence showed that each of the rejected applicants was physically capable of performing the jobs of roustabout and floorhand, and there was nothing in the record which suggested the presence of a risk of injury so immediate as to prevent any of the applicants from being considered presently capable of performing those jobs, each applicant was "qualified" under Section 503 and the regulations. OFCCP v. Rowan Companies, Inc., 89-OFC-41, ALJ Rec. Dec. and Order, April 3, 1991, slip op. at 7, n.11, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

The burden of proof in Section 503 risk of future injury cases is the same as in cases arising under Section 504 of the Rehabilitation Act. Id. at 8, n.16, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

The decision in OFCCP v. Texas Industries, 80-OFCCP-28, Assistant Secretary Decision, June 7, 1988, sets forth the legal standard to be applied in determining whether contractor's job requirements that screen out qualified handicapped individuals on the basis of future risk of injury are discriminatory; a showing of reasonable probability of substantial harm is required in order to establish that such job requirements are non-discriminatory. Id. at 8, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Factors to be considered in measuring rationality of future injury defense are set forth in E.E. Black v Marshall, 497 F. Supp. 1088 (D.C. Hi., 1980): the likelihood of injury, the seriousness of possible injury and the imminence of the injury. Ibid., remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Any qualification based on the risk of future injury must be examined with special care if the Rehabilitation Act is not to be circumvented easily, since almost all handicapped persons are at a greater risk of work-related injuries. Id. at 9, quoting, Bentivegna v. U.S. Department of Labor, 694 F.2d 619, (1982), remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Although a job requirement resting on mere expediency or preference does not substitute for business necessity, a job requirement directly tied to increased risk of injury might be held non-discriminatory if applied to applicants for a job that carries elevated risks of injury. Ibid., remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

A showing of elevated risk, without more, is not sufficient to establish risk of future injury defense. Ibid., remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Whether, in light of the complainant's work history and medical history, employment of that individual would pose a reasonable probability of substantial harm is a question which involves a case-by-case analysis of the applicant and the particular job. Ibid., quoting, Mantolete v. Bolger, 767 F.2d 1416 (9th cir. 1982), remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

The case-by-case analysis of the applicant and the particular job mandated in Mantolete is greatly impacted by the fact that jobs in issue (oil drilling rig laborer jobs) involved extraordinary strenuous and uniquely demanding physical exertion, together with singularly uncommon working conditions. Id. at 10, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Cases holding that a contractor's automatic rejection of applicants with epilepsy, back conditions, and hypertension is discriminatory (PPG, TXI, and WMATA) are not controlling in case involving job which is extraordinarily strenuous and performed in uncommon working conditions; those cases do not take into account the nature of the job functions and work conditions involved. Id. at 13, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Contractor does not engage in "wholesale stereotyping" by automatically rejecting applicants with epilepsy, back conditions, hearing or vision impairments, or hypertension where contractor is able to show by competent medical evidence that all or substantially all such persons are unable to do the jobs in question without reasonable probability of future substantial harm to themselves or their co-workers. Id. at 13-14, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Where contractor demonstrates that the demands of the job in question especially lend themselves to future injury, the required specificity of information relative to an applicant's medical condition and work history is less necessary or compelling. Id. at 14, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Contractor's methods of identifying applicants who would create a reasonable probability of substantial harm are grounded upon a business necessity, and not mere preference, where contractor demonstrated that there is a rational relationship between such screening out methods and the subject job functions and conditions in the context of the contractor's business. The disqualifying conditions, back problems, vision and hearing impairments, hypertension and epilepsy, substantially promote business necessity and safe performance of the jobs and are clearly related to the jobs. Ibid., remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Where the risk of future injury in the job in question is more prominent and definite and the option to hire or not hire certain applicants less flexible and discretionary, methods and criteria used by the contractor to identify those applicants who will probably severely hurt themselves or their co-workers may be formulated in broader, less refined and more general terms. Ibid., remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Where the jobs in question especially lend themselves to risk of injury, the predictability of future injury may be measured by criteria less keenly sensitive and detailed than those which may be required where commonplace jobs are involved. Ibid., remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Contractor established that its methods of identifying applicants who would create a reasonable probability of substantial harm are reasonably designed to detect such applicants without violating the parameters set forth in PPG, TXI, and WMATA; methods of identification included automatic exclusion of applicants based on results back x-rays, blood pressure readings, vision and hearing thresholds and the presence of the conditions of epilepsy and shoulder defects. Ibid., remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Contractor established by medical evidence that employment of applicants with certain back conditions such as spondylolysis and pseudoarthrosis would create an unacceptable probability of substantial future injury. Id. at 15, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Contractor's rejection of applicants with blood pressure in excess of 140/90 was justified, where contractor established that uncontrolled hypertension elevates significantly the risk of substantial injury to a worker who is involved in very strenuous exertional activities, regular climbing to several hundred foot heights and balancing while engaged in cooperative tasks with co-workers. Ibid., remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Contractor's automatic rejection of applicants with epilepsy was justified because it was grounded upon the rationally-based fear that a seizure, occurring during the performance of the uniquely exertional duties of the jobs in issue in an oil rig's uniquely hazardous environment, would result in substantial harm to the applicant or his co-dependent fellow workers, particularly considering the medication control problems attendant with the epileptic employee. Id. at 16, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

The medical evidence supported a finding that contractor's employment of applicants with certain vision and hearing deficiencies would bring about substantial harm. Ibid., remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

The medical evidence supported a finding that contractor's employment of applicants with shoulder defects in jobs involving exposure to climbing hazards and suspension by clinging to ladder rails would present a reasonably probability of future risk of substantial injury. Ibid., remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Under section 503, a contractor concerned about the future risk of injury cannot reject an individual simply because of the possibility of such risk but must establish that there is a reasonable probability of serious harm to that individual or to others. OFCCP v. Exide Corporation, 84-OFC-11, Acting Assistant Secretary for Employment Standards Dec. and Final Order, April 30, 1991, slip op. at 11, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

In determining whether employment of an individual would pose a reasonable probability of substantial harm, the contractor must assemble all relevant information concerning the individual's work history and medical history and evaluate that information together with the physical requirements of the job. Ibid., vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

Evidence showed that contractor's refusal to allow complainant to return to work after he presented a note from his doctor releasing him to return to work at "full strength" was made without inquiry as to complainant's actual medical condition and without investigation into what medical findings had been made during complainant's medical leave; decision was made solely on the basis of an uninformed comparison between complainant and a former employee who was required to obtain a particular type of release before returning to work. Thus, the manner in which contractor decided to refuse to allow complainant to return to work falls short of the case-by-case analysis required under the Rehabilitation Act. Id. at 12-13, vacated sub. nom., Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip op. at 23-26.

A contractor's obligation to conduct the type of medical inquiry required by Section 503 is not dependent on whether the employee attempts to comply with the contractor's discriminatory job condition. Id. at 13, n.9, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

Because non-imminent risk of future injury does not make an otherwise capable person incapable, contractor's claim that complainant was not qualified for the brakeman/conductor job because he is at a risk of injury in that job should be rejected. OFCCP v. Norfolk and Western Railway Co., 90-OFC-1, ALJ Rec. Dec. and Order, June 26, 1991, slip op. at 30, n.9; Consent Decree, November 22, 1991.

Any qualification based on the risk of future injury must be examined with special care if the Rehabilitation Act is not to be circumvented easily, since almost all handicapped persons are at a greater risk of work-related injuries. Id. at 31, n.10.

If the requisite risk level for establishing the future risk defense is too low, then the avenue is open to evasion of the statutory bar to discrimination. If the requisite risk threshold invoking the defense is set unreasonably high, then the defense is as a practical matter negated. The continuum of risk ranges from the possibility of harm or elevated level of risk to the concept of imminent risk. A "balance" is stuck by rejecting the defense on a showing of elevated risk and sustaining the defense on a showing of reasonable probability of substantial harm. Id. at 31-32.

A showing of elevated risk, without more, is not sufficient to establish risk of future injury defense. Id. at 32.

Whether, in light of the complainant's work history and medical history, employment of that individual would pose a reasonable probability of substantial harm is a question which involves a case-by-case analysis of the applicant and the particular job. Ibid.

In determining whether employment of complainant would create a reasonable probability of substantial harm, an employer must gather all relevant information regarding the applicant's work history and medical history, and independently assess both the probability of severity of potential injury. Ibid., quoting, Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985).

The standard of reasonable probability of substantial harm mandates an examination of the individual's work history in addition to the available medical information. In short, medical reports are not to be considered in a vacuum, particularly where there exists evidence that complainant performed the job duties with his impairment and evidence that other individuals with the same impairment performed the same job. Id. at 32-33.

The work history of the handicapped individual or individual similarly situated is to be accorded substantial weight in determining whether the impairment under consideration presents a reasonable probability of substantial harm, particularly if the medical opinions conflict. Id. at 35.

Contractor's assertion that certain monocular brakemen/conductors "may" have been injured and/or committed safety violations because of their impaired vision is speculative and cannot meet contractor's burden of showing a reasonable probability of substantial harm. Id. at 36, n.19.

Contractor demonstrated that employment of complainant with monocular vision may pose a possibility of injury or an elevated risk of harm. However, contractor failed to show a reasonable probability of substantial harm in light of the opinions of complainant's treating physician and OFCCP's other medical expert, in light of the evidence that complainant performed the job duties in question and in light of the evidence that other individuals with monocular vision safely performed the job. Id. at 37.

Evidence that another individual with monocular vision safely performed the brakeman/conductor job on the same rail line that complainant would have worked was particularly significant in ALJ's determination that employment of complainant would not have posed a reasonable probability of substantial harm. Ibid.

Because contractor failed to show that employment of complainant with monocular vision would pose a reasonable probability of substantial harm, it is unnecessary to address the issue of accommodation. Id. at 37, n.21.

The ALJ erred in concluding that manic depressive employee was discharged because he created a risk of liability under the contractor's view of maritime law; employee was discharged because he failed to provide medical records necessary for contractor to determine whether he created risk of liability. OFCCP v. American Commercial Barge Line Co., 84-OFC-13, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Order, April 15, 1992, slip op. at 11-12.

Contractor's request that employee who claimed to be epileptic produce a release from his doctor stating that he could work on dangerous equipment and under dangerous conditions does not evidence that the contractor regarded him as handicapped but, instead, was consistent with company policy of making sure that return to work excuses for all employees are "adequate and complete" and to ensure that the complainant's physician had sufficient information to make a recommendation about his ability to return to work. Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip. op. at 16.

Contractor did not violate Section 503 by requesting that employee who claimed to be epileptic produce a release from his doctor stating that he could work on dangerous equipment and under dangerous conditions; because employee believed that he had suffered epileptic seizures, contractor's request was a lawful and prudent inquiry directly related to complainant's own claims and his ability to safely return to work without posing a danger to himself or others. Id. at 18.

Regardless of his actual medical condition, complainant's claim that he was epileptic created a legal duty under the Occupational Safety and Health Act, 29 U.S.C. §651, 652, and 654, for contractor to maintain a place of employment free from recognized hazards by ensuring that complainant was medically capable of returning to the work force without posing a danger to himself or others. Thus, contractor did not violate Section 503 by requesting that employee who claimed to be epileptic produce a release from his doctor stating that he could work on dangerous equipment and under dangerous conditions. Id. at 19.

Under the legal theory of "negligent retention," an employer can be held liable for an act of harm caused by an employee to fellow workers where the company was previously on notice of the employee's propensity to cause the harm in question. Under this legal theory, once contractor was put on notice of complainant's claimed epileptic seizures, contractor had a duty to ensure that complainant could safely return to work to the admitted hazardous conditions in the plant without posing a safety danger to his fellow workers. Thus, contractor did not violate Section 503 by requesting that employee who claimed to be epileptic produce a release from his doctor stating that he could work on dangerous equipment and under dangerous conditions. Ibid.

A contractor may impose "qualification requirements" on employees even if they tend to "screen out" qualified handicapped individuals, provided that the requirements are job related, consistent with business necessity and the safe performance of the job. Thus, contractor did not violate Section 503 by requesting that employee who claimed to be epileptic produce a release from his doctor stating that he could work on dangerous equipment and under dangerous conditions; contractor had a legal right to demand that complainant meet requirements such as obtaining the release to ensure that he could safely return to the admitted hazardous conditions in the plant. Id. at 19-20.

Under Mantolete v. Bolger, 767 F,.2d 1416 (9th Cir. 1985), the only critical issue is that an inquiry concerning the employee's ability to perform the job be made before any final decision is rendered to absolutely deny employment or reinstatement to a qualified handicapped individual. Thus, contractor's request that complainant who claimed he was epileptic produce a note from his doctor releasing him to work on dangerous equipment and in dangerous conditions was not unlawful because the request was made in order for contractor to make its decision concerning complainant's reinstatement; i.e., whether complainant could safely perform the work in the admittedly dangerous environment of the contractor's plant. Id. at 23-26.

The fact that NASA may have had a policy forever prohibiting former substance abusers from becoming astronauts is of little relevance to whether contractor is permitted to permanently bar former substance abusers from over 1800 different jobs. OFCCP v. Exxon Corporation, 92-OFC-4, ALJ Rec. Dec. and Order, June 15, 1993, pending, Assistant Secretary for Employment Standards,

at 5, n.8; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

FAA studies regarding its policy of returning recovering alcoholic pilots into the work place are relevant in determining the risk of relapse of a recovering alcoholic because the FAA policy appears to be the only industry-wide program of its kind. Id. at 20; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 16-17.

If risk of future injury is the contractor's defense, the contractor must show that employment of the handicapped individual poses a reasonable probability of substantial harm in light of the individual's work history and medical history. Id. at 22; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996; at 10-11.

ALJ finds unpersuasive contractor's assertion that complainant (a recovering alcoholic) is not capable of performing a safety sensitive job because of the risk of injury; non-imminent risk of future injury does not render incapable an individual who is capable. Id. at 29; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

Contractor failed to establish that its former drug and alcohol policy, which did not automatically exclude recovering alcoholics from safety sensitive positions, was insufficient to prevent risk of injury in those jobs. In the absence of evidence that the former policy was ineffective, contractor's across-the-board exclusion of recovering alcoholics from safety sensitive jobs cannot be found to be reasonable, or consistent with business necessity and safe performance of the job. Id. at 35; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

In determining the risk of future injury, the standard is whether, in light of the individual's work history and medical history, employing him would pose a reasonable probability of substantial harm to himself or others; the standard is not whether the individual is at risk for relapsing. Id. at 35; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 11-14.

In determining whether employment of an individual would pose a reasonable probability of substantial harm, the contractor must undertake a "case-by-case analysis of the applicant and the particular job" by "gathering all relevant information . . . and independently assess[ing] both the probability and severity of potential injury. The application of this standard "requires a strong factual foundation that [an individual's] handicap precludes safe employment. Id. at 36, quoting Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985); affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 14.

By applying to the complainant its blanket exclusion of recovering alcoholics from certain designated positions, contractor failed to perform an individualized assessment of whether complainant would pose a reasonable probability of substantial harm. Id. at 36; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 23.

ALJ finds that complainant's risk of an alcoholic relapse is low in light of testimony from OFCCP's medical experts who examined the complainant that 1) his recovery was strong and the risk of relapse low; 2) an alcoholic relapse has certain predictors which can be detected before job problems appear; and 3) complainant may be at an even lower risk of causing an accident than the general public. Id. at 36; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 11-14.

It is a "tenuous prediction" that complainant (a recovering alcoholic) would suffer a relapse, that an emergency would occur, that he as a result of drinking would take some inappropriate action, and that that action would cause a catastrophe. This reasoning does not begin to approximate the kind of prediction of the likelihood, imminence and severity of future injury required by E. E. Black v. Marshall, 497 F. Supp. 1088 (D. Hi 1980). Id. at 36; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

ALJ finds that the single best predictor of whether complainant will have an alcoholic relapse is his past history. Id. at 37; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 22.

ALJ finds that complainant's risk of alcoholic relapse is low in light of testimony from both parties' experts that the longer a recovering alcoholic remains sober, the less likely he is to relapse, and in light of the fact that complainant maintained sobriety for eight years, acknowledged his difficulty maintaining long-term sobriety due to his bi-polar illness, openly admitted his single incident of drinking, has been active in AA since 1980, and has faced several major stressors in his life without suffering an alcoholic relapse. Id. at 37; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 11-18.

Although the parties stipulated that the severity of potential harm to human life and the environment would be high should complainant (a recovering alcoholic) cause an accident in a safety sensitive job, the probability of harm is very low, in light of the fact that there has been only one leak at the plant in question since 1985, and in light of the fact that complainant's risk of relapse is low. Id. at 38; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

ALJ rejects contractor's contention that the individualized inquiry mandated by Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985), be abandoned in light of the high risk involved in a safety sensitive position and the inability to predict the probability of an alcoholic relapse. Id. at 38-43; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 23.

ALJ refuses to uphold contractor's blanket exclusion of recovering alcoholics from certain designated positions because contractor failed to show that all or substantially all recovering alcoholics are unable to perform the jobs in question without a reasonable probability of substantial harm. Id. at 40-41; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 14.

Requiring contractor to make individualized inquiries to determine whether recovering alcoholic employees can safely perform safety sensitive jobs is not overly burdensome. Id. at 42; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 18.

A contractor's determination of whether employment of an individual would pose a reasonable probability of substantial harm cannot be based merely on medical reports "except in cases of a most apparent nature." This phrase refers to situations that are very clear, evident and obvious, and not subject to serious dispute. OFCCP v. Yellow Freight System, Inc., 84-OFC-17, Assistant Secretary Final Decision and Order of Remand, July 27, 1993, slip op. at 12; Acting Assistant Secretary Reconsideration of Final Decision and Order, December 22, 1993; Order Approving Settlement, April 20, 1994.

Complainant's back x-ray results were not a "case of a most apparent nature" upon which contractor could rely exclusively in determining whether complainant posed a reasonable probability of substantial harm. Id. at 12.

Assistant Secretary discounts contractor's physician's assertions that employment of complainant with a back impairment would pose a reasonable probability of substantial harm. The physician merely reviewed complainant's back x-rays and provided no concrete data or other information to fully justify his position. Id. at 12-13.

Contractor's reliance on complainant's back x-rays in determining whether he posed a reasonable probability of substantial harm constitutes a violation of Section 503 as applied to complainant in particular and as it was used as a part of the contractor's general employment process. Id. at 14.

Contractor's decision to terminate complainant, which was based solely on a review of his back x-rays, violated Section 503 because contractor failed to gather all relevant information and assess both the probability and severity of potential injury in a meaningful and comprehensive manner. Id. at 14.

Because complainant was a "qualified handicapped individual" his termination could only be justified if it was predicated upon a valid screening process for determining possible future injury consistent with the exclusionary standard enunciated in Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985). Contractor's screening process did not comport with the standards enunciated in that case and are therefore invalid. Thus, complainant is entitled to a remedy and remand to the ALJ to consider remedy is appropriate. Id. at 16.

Contractor's employment screening process violated Section 503 in that contractor relied solely on back x-rays to determine whether employees posed a reasonable probability of substantial harm. Therefore, Assistant Secretary orders contractor to develop and implement policies and procedures regarding back conditions including the use of x-ray examinations therein, which are consistent with Section 503. Id. at 16-17.

In determining whether the company's decision to reject the complainant was justified because his disability poses a reasonable probability of substantial harm, the court will consider the facts as they existed at the time the decision to reject was made and the reasonableness of the decision in light of the facts. OFCCP v. CSX Transportation, Inc., 88-OFC-24, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994, at 18; Case closed, January 17, 1996.

While risk of injury may, in some cases, justify the refusal to hire an otherwise qualified handicapped person, mere elevated risk of injury, without more, is not sufficient. The issue is whether hiring the complainant posed a reasonable probability of substantial harm. OFCCP v. Commonwealth Aluminum Corp., 82-OFC-6, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 10; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Any qualification based on risk of future injury must be examined with special care, since almost all handicapped persons are at greater risk from work-related injuries. Id. at 10, n.6.

The job qualifications, [including radiographic evidence of a back abnormality], as applied essentially screened out the complainant because of an increased risk of injury. As such, they must be examined with care. The evidence in this case fails to justify refusing employment to the complainant because it does not establish a reasonable probability of substantial harm, or even predict that any injury would ever happen if she were employed in a manual labor position. Id. at 18.

The evidence as to the complainant does not support refusing him employment because all it states is that he should avoid heavy lifting, and it does not establish a probability of substantial harm or predict if any injury will occur. Id. at 19.

A contractor fails to justify failure to hire based upon risk of future injury where the only evidence states that the complainant is at a higher risk for back pain, but fails to show a probability of substantial harm or predict if any injury will ever occur. Id. at 21.

Commonwealth's perception that the complainant needed immediate surgery and was therefore in imminent risk of future injury, was held to be unsupported by the evidentiary record. The Assistant Secretary held that the most that can be determined . . . is that his hernia presented an elevated risk of injury at some point in the future. Id. at 22-23.

As for Exxon relying on the holding in Arline and arguing for categorical exclusion due to an "unpredictable risk of relapse," the ARB held that the inquiry in Arline was individual-specific. The Court in Arline stressed the need "to conduct an individualized inquiry and make appropriate findings of fact" if the Rehabilitation Act were "to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns . . . as avoiding exposing others to significant health and safety risks." 480 U.S. 273, 287 (1987). Pertinent considerations included the nature, duration and severity of risk and the probability that the risk would cause varying degrees of harm. Exxon's categorical exclusion of all individuals treated previously for alcohol abuse does not meet this individualized examination standard. OFCCP v. Exxon Corporation d/b/a/ Exxon Company, 92-OFC-4, Final Decision and Order, Administrative Review Board, October 28, 1996, at 10.

Because OFCCP established that complainant was a qualified individual with a disability who was transferred because of that disability, Exxon must demonstrate that his continued employment in the designated position would pose a "reasonable probability of substantial harm" and "not merely on an employer's subjective evaluation or, except in cases of a most apparent nature, merely on medical reports." Mantolete v. Bolger, 767 F.2d 1416, 1422-1423 (9th Cir. 1985). Id. at 10 and n.15.

Absent imminent risk of injury, the only material question is whether the individual is capable of performing the duties of the job. E.E. Black, Ltd. v. Marshall, 497 F.Supp. 1088, 1103 (D. Hawaii 1980) (non-imminent risk of future injury . . . does not make an otherwise capable person incapable"). Complainant could pose an imminent risk only if he currently were abusing alcohol or if he were at high risk of relapse. He is neither. In this case, then, the issue of risk, i.e., reasonable probability of substantial harm, pertains only to justifying job qualification requirements. Id. at 10 n.14.

The ARB reaffirmed the likelihood, imminence and severity of injury as pertinent considerations for assessing the reasonable probability of substantial harm. The ARB held that Exxon's 1989 Drug and Alcohol Policy excludes from positions designated safety-critical any employee who has undergone treatment for alcoholism, thereby establishing a job requirement that screens out qualified individuals with disabilities. Accordingly, Exxon also must demonstrate that the requirement is job-related and consistent with business necessity and safe job performance. 41 CFR § 60-741.6(c). Id. at 11.

The ARB concurred with the ALJ's determination that in assessing the probability and severity of potential harm . . . [E]xxon's "tenuous prediction" (of an accident resulting in substantial loss of human life and/or severe envirnmental damage) is contingent upon an emergency and a relapse to drinking occurring simultaneously. As the probability of an emergency and a relapse occurring separately is low, the probability of the two occurring together to result in inappropriate action and catastrophe is exponentially lower. . . . The probability of harm is reduced even further if Exxon monitors complainant's condition through periodic medical examination and random testing. Id. at 13.

In determining whether employment of an individual would pose a reasonable probability of substantial harm, the Rehabilitation Act requires an examination of the individual's medical and employment histories. Determinations may not be premised on general medical reports except in cases of the most apparent nature. Thus, substitution of categorical exclusion for individual evaluation requires that all or substantially all of the individuals with the disability be unable to perform the job safely. Id. at 14.

The ARB rejected Exxon's premise that a relapse is almost impossible to predict and concurred with the ALJ, who observed that [t]he evidence establishes that alcoholics, unlike epileptics and diabetics, experience warning signs before they relapse; that the longer an alcoholic remains sober, the less likely he is to relapse; that job problems are the last to appear when an alcoholic relapses, and thus a progression toward alcoholic drinking can be detected long before any job problems appear. Id. at 15.

The ARB concurred with the ALJ and held that Exxon's policy of categorical exclusion of all individuals who have had a substance abuse problem from 1800 designated positions, offered a disincentive for "self-identifying" and seeking treatment. [T]here is no incentive under the policy for individuals who either (1) are in current need of rehabilitation, (2) have "self-reformed," or (3) have undergone rehabilitation in the past, to come forward and identify themselves. [T]he choice for individuals . . . is to self-identify and be transferred to another job, or to play roulette and hope a random test does not identify them. Id. at 16.

The most reliable predictor of how complainant will perform his job tomorrow is how he performed his job over the past nine years. Id. at 22.

The ARB held that categorical exclusion [of all rehabilitated] alcoholics [from positions designated safety-critical] is an expedient means of avoiding risk where individualized assessment would distinguish between those persons who have rehabilitated themselves successfully and those who have not. At bottom, Exxon's "never-ever" policy is based on a judgment that rehabilitated alcoholics are forever disposed to relapse, certainly a "myth, fear or stereotype" associated with alcoholism. In the instant case the reality is the contrary -- for an individual like complainant who has maintained sobriety for years, any fear of relapse is not well-grounded. Id. at 23.

Exxon's "across-the-board policy prohibiting rehabilitated individuals from holding designated position" was "impermissibly inflexible" because it "[did] not differentiate between those who have been successful in rehabilitating themselves and those who have not." It thus violated the section 503 "mandate of affirmative action and non-discrimination in employment," and absent application of the policy "on a case-by case basis," Exxon risked future violation. Id. at 27.