IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

____________________________________

)

JOE HOUSE,	)

)	Civil Action No. 1:99-1306

Plaintiff,	)

)

v.	)	Judge Todd

)

CITY OF JACKSON and the	)

JACKSON POLICE DEPARTMENT,	)

)

Defendants.	)

____________________________________)

UNITED STATES' BRIEF AS AMICUS CURIAE

IN RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

BILL LANN LEE

Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS, Deputy Chief

PHILIP L. BREEN, Special Legal Counsel

M. CHRISTINE FOTOPULOS, Attorney

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

(202) 305-7475

TABLE OF CONTENTS

TABLE OF AUTHORITIES	iii

BACKGROUND	1

STATUTORY AND REGULATORY BACKGROUND	3

ARGUMENT	6

I.	STATUTORY PROVISIONS MANDATING THE BLANKET EXCLUSION FROM EMPLOYMENT OF ALL PERSONS WITH ANY "APPARENT MENTAL DISORDER" LISTED IN THE DSM ARE FACIALLY INVALID UNDER THE ADA	6

A.	THE BLANKET EXCLUSION IS NOT JOB-RELATED AND CONSISTENT WITH BUSINESS NECESSITY	7

B.	THE BLANKET EXCLUSION CANNOT BE JUSTIFIED UNDER THE "DIRECT THREAT" PROVISION	13

II.	STATUTORY PROVISIONS MANDATING THIS BLANKET EXCLUSION ARE PREEMPTED BY THE ADA AND HAVE NO LEGAL FORCE OR EFFECT	19

A.	EMPLOYERS MAY NOT RELY UPON THE STATUTORY PROVISIONS AS A DEFENSE TO A CLAIM OF UNLAWFUL DISCRIMINATION UNDER THE ADA	23

B.	EMPLOYERS MAY BE HELD FULLY LIABLE FOR THEIR VIOLATIONS OF THE ADA NOTWITHSTANDING THE STATUTORY PROVISIONS	26

CONCLUSION	27

TABLE OF AUTHORITIES

CASES

Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999)	10, 24

Andrews v. Ohio, 104 F.3d 803 (6th Cir. 1997)	6, 13

Bombrys v. City of Toledo, 849 F.Supp. 1210 (N.D. Ohio 1993)	9, 17

Bragdon v. Abbott, 524 U.S. 624 (1998)	14-15

Brickers v. Cleveland Board of Education, 145 F.3d 846 (6th Cir. 1998)	25-26

Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993)	17

Coleman v. Casey County Board of Education, 510 F.Supp. 301 (W.D. Ky. 1980)	20

Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995)	17

Davis v. City of Camden, 657 F.Supp. 396 (D.N.J. 1987)	28

EEOC v. Chrysler Corp., 917 F.Supp. 1164 (E.D. Mich. 1996)	9, 17

EEOC v. County of Allegheny, 705 F.2d 679 (3rd Cir. 1983)	21, 27

EEOC v. Exxon Corp., 203 F.3d 871 (5th Cir. 2000)	10, 16, 19

EEOC v. State of Illinois, 69 F.3d 167 (7th Cir. 1995)	20

Felder v. Casey, 487 U.S. 131 (1988)	21, 22

Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963)	21

Free v. Bland, 369 U.S. 663 (1962)	22

Gade v. National Solid Wastes Management Ass'n, 112 S.Ct. 2374 (1992)	20-21

Garneau v. Raytheon Co., 323 F.Supp. 391 (D.C. Mass. 1971)	20

General Electric Co. v. Young, 3 FEP Cases 560 (W.D. Ky. 1971)	20

Hall v. U.S. Postal Service, 857 F.2d 1073 (6th Cir. 1988)	16

Hamlin v. Charter Township of Flint, 165 F.3d 426 (6th Cir. 1999)	15-16

Hammer v. Board of Education, 955 F.Supp. 921 (N.D. Ill. 1997)	9

Heise v. Genuine Parts Co., 900 F.Supp. 1137 (D. Minn. 1995)	9

Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998)	11

Hines v. Davidowitz, 312 U.S. 52 (1941)	21

Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. 2000)	17-20

Homemakers, Inc., L.A. v. Div. of Industrial Welfare, 356 F.Supp. 111 (N.D. Cal. 1973)	20

Hutchinson v. United Parcel Service, 883 F.Supp. 379 (N.D. Iowa 1995)	9

Int'l Union, United Auto Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991)	26

Jones v. Rath Packing Co., 430 U.S. 519 (1977)	20

Kapche v. City of San Antonio, 176 F.3d 840, 844 (5th Cir. 1999)	17

Kober v. Westinghouse Elect. Corp., 480 F.2d 240 (3rd Cir. 1973)	27-28

Kreitner v. Bendix Corp., 501 F.Supp. 415 (W.D. Mich. 1980)	20

Krocka v. Bransfield, 969 F.Supp. 1073 (N.D. Ill. 1997)	9, 17

Local 246, Utility Wkr's Union v. So. Cal. Ed. Co., 320 F.Supp. 1262 (D.C. Cal. 1970)	20-21

Oconomowoc Res. Prog., Inc. v. City of Greenfield, 23 F.Supp.2d 941 (E.D. Wis. 1998)	20

Perez v. Campbell, 402 U.S. 637 (1971)	21

Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981)	12

Quinones v. City of Evanston, 58 F.3d 275 (7th Cir. 1995)	27

Quinones v. City of Evanston, 829 F.Supp. 237 (N.D. Ill. 1993)	27

Rizzo v. Children's World Learning Centers, Inc., 84 F.3d 758 (5th Cir. 1996) ("Rizzo I")	16

Rizzo v. Children's World Learning Centers, Inc., 173 F.3d 254 (5th Cir. 1999) ("Rizzo II")	19

Rizzo v. Children's World Learning Centers, Inc., 213 F.3d 209 (5th Cir. 2000) ("Rizzo III")	19

Rosenfield v. Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971)	27

Sarsycki v. United Parcel Service, Inc., 862 F.Supp. 336 (W.D. Okl. 1994)	9, 17

School Board of Nassau County v. Arline, 480 U.S. 273 (1987)	14-15

Spirt v. Teachers Insurance and Annuity Ass'n, 691 F.2d 1054 (2nd Cir. 1982)	20

Stillwell v. Kansas City Bd. of Police Comm., 872 F.Supp. 682 (W.D. Mo. 1995)	8-9, 17

T.E.P. v. Leavit, 2 A.D. Cases (BNA) 1299 (D. Utah 1993)	20

Taylor v. General Motors Corp., 875 F.2d 816 (11th Cir. 1989)	21-22

Vogel v. Trans World Airlines, 346 F.Supp. 805 (W.D. Miss. 1970)	20

Williams v. General Foods, 492 F.2d 399 (7th Cir. 1974)	27

FEDERAL STATUTES, REGULATIONS AND INTERPRETIVE GUIDANCE

Americans with Disabilities Act (ADA), 42 U.S.C. §§12101, et seq.	passim

EEOC Title I Regulations and Interpretive Appendix (29 C.F.R. part 1630)	passim

EEOC's Technical Assistance Manual on Title I of the ADA	passim

LEGISLATIVE HISTORY

H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess (1990) (Labor Report)	passim

H.R. Rep. No. 485 part 3, 101st Cong., 2d Sess. (1990) (Judiciary Report)	passim

S. Rep. No. 116, 101st Cong., 1st Sess. (1989) (Senate Report)	passim

H. Conf. Rep. No. 101-596, 101st Cong., 2d Sess. (1990), 1990 U.S.C.C.A.N. 593.	23

STATE STATUTES

Tenn. Code Ann. §38-8-106	passim

Tenn. Code Ann. §38-8-104	2

Tenn. Code Ann. §37-5-117	1

Tenn. Code Ann. §41-1-116	1

Tenn. Code Ann. §7-86-201	1, 2, 3

Tenn. Code Ann. §8-8-102	1

MISCELLANEOUS

Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSM-IV") American Psychiatric Association (Washington, D.C. 1994)	passim

BACKGROUND

The State of Tennessee has enacted five state statutes which mandate various minimum qualification standards for all persons employed or seeking employment in any of five different law enforcement positions in the state: "police officer" (Tenn. Code Ann. §38-8-106); "sheriff" (Tenn. Code Ann. §8-8-102); "correctional officer" (Tenn. Code Ann. §41-1-116); "youth service officer" (Tenn. Code Ann. §37-5-117); and "public safety dispatcher" (Tenn. Code Ann. §7-86-201). Among the numerous standards imposed by each of these statutes is the following requirement, which is stated in nearly identical language in all five statutes:

Persons employed in these positions must "be free of all apparent mental disorders as described in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association," and "must be certified as meeting these criteria by a qualified professional in the psychiatric or psychological fields."1

By means of this provision, these statutes mandate the automatic exclusion from employment of all persons who have any mental condition listed in the DSM, without allowing for an individualized assessment of whether a particular individual can safely perform the essential functions of the particular job in question with or without a reasonable accommodation, and without providing for any exception.2

On November 16, 1999, Plaintiff Joe House, a police officer, brought this suit against his former employers, Defendants City of Jackson and the Jackson Police Department, alleging that they unlawfully discriminated against him on the basis of disability in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§12101, et seq. Among his other claims, Plaintiff alleges that Defendants unlawfully relied upon Tenn. Code Ann. §38-8-1063 when they refused to reassign him to a desk officer position as a reasonable accommodation of his disability (post-
traumatic stress disorder). See Plaintiff's Complaint, p. 4. Plaintiff alleges that this statutory provision conflicts with the ADA and is therefore preempted, and that Defendants are estopped from relying upon it as a defense to a claim of unlawful discrimination under the ADA. Id. at 4-
5. In addition to other requested relief, Plaintiff prays for injunctive relief and a declaration that this provision violates the ADA. Id. at 6.4

On October 13, 2000, Defendants filed a Motion for Summary Judgment, arguing, inter alia, that Plaintiff, who has been diagnosed with a "mental disorder" as defined by the statute, "could not perform duties as a desk officer...because he was a safety threat to himself and others." Defendants' Memorandum of Law, p. 12. Defendants also argue that "Plaintiff cannot, as a matter of law, be considered a 'qualified individual with a disability' [under the ADA] since he cannot satisfy the requirements of Tenn. Code Ann. §38-8-106," and that "[t]he ADA does not require an employer to accommodate a person's disability by ignoring duties imposed by state or federal statute." Id., p. 13. Thus, Defendants have invoked as an affirmative defense the very statutory provision asserted by both Plaintiff and the United States to be facially invalid under and preempted by the ADA.5

STATUTORY AND REGULATORY BACKGROUND

Title I of the ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees,...and other terms, conditions, and privileges of employment." 42 U.S.C. §12112(a). A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. §12111(8).6

As used in the ADA, the term "discriminate" specifically includes "using qualification standards...that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity..." 42 U.S.C. §12112(b)(6); 29 C.F.R. §1630.10.7 The law also prohibits subjecting applicants and employees to medical or psychological examinations except as specifically permitted, and using the results of any such testing in any manner that is inconsistent with the requirements of the ADA. 42 U.S.C. §12112(d); 29 C.F.R. §1630.14(c). In particular, "if certain criteria are used to screen out an employee or employees with disabilities as a result of such examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity, and performance of the essential job functions [must not be capable of being] accomplished with reasonable accommodation." 29 C.F.R. §1630.14(b)(3).8

The ADA provides two defenses to employers who use employment qualification standards:

(a) In General. It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this subchapter.

(b) Qualification standards. The term "qualification standards" may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.

42 U.S.C. §12113. In addition, the EEOC's interpretive guidance to its Title I regulations regarding these defenses provides that:

With regard to safety requirements that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, an employer must demonstrate that the requirement, as applied to the individual, satisfies the "direct threat" standard in §1630.2(r) in order to show that the requirement is job-
related and consistent with business necessity.

29 C.F.R. part 1630, App. §1630.15(b) & (c). The ADA defines "direct threat" as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C. §12101(3). Implementing regulations establish the analysis to be used in determining whether an applicant or employee poses a direct threat:

Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a "direct threat" shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) the nature of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

29 C.F.R. §1630.2(r). Finally, the EEOC's interpretive guidance for the "direct threat" provision provides that:

[a]n employer...is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e., high probability, of substantial harm; a speculative or remote risk is insufficient...Determining whether an individual poses a significant risk of substantial harm to others must be made on a case-by-case basis. The employer should identify the specific risk posed by the individual. For individuals with mental or emotional disabilities, the employer must identify the specific behavior on the part of the individual that would pose the direct threat...[C]onsideration [of the relevant factors] must rely on objective, factual evidence – not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes – about the nature or effect of a particular disability, or of disability generally.

29 C.F.R. part 1630, App. §1630.2(r) (citations omitted).

ARGUMENT

I.	Statutory Provisions Mandating the Blanket Exclusion From Employment of All Persons With Any "Apparent Mental Disorder" Listed in the DSM Are Facially Invalid Under the ADA

To be lawful under the ADA, any employment qualification standard that screens out individuals with disabilities must be "job-related and consistent with business necessity." 42 U.S.C. §12112(b)(6).9 In most cases, this means that the standard must directly relate to the ability of an individual to perform the essential functions of the specific job to which the standard is being applied. However, if the qualification standard does not meet this test and is instead imposed for the purpose of excluding individuals who are thought to pose a threat to public health or safety, then the standard must be justified under the "direct threat" provision of the ADA. See 29 C.F.R. part 1630, App. §1630.15(b) & (c).

There is no question that the qualification standard at issue in this case screens out individuals with mental disabilities from employment as police officers10, because it constitutes a blanket exclusion of all individuals with any mental disorder listed in the DSM, including many conditions that would qualify as "disabilities" under the ADA but do not necessarily impact a person's ability to perform the essential functions of the job with or without a reasonable accommodation. There is also no question that the standard is imposed for the specific purpose of excluding certain individuals from employment as police officers because it is presumed that they will pose a threat to public health or safety. Therefore, the validity of this qualification standard under the ADA depends on (a) whether it is job-related and consistent with business necessity, and (b) whether the entire class of individuals excluded by the standard necessarily pose a "direct threat." The United States submits that the blanket exclusion of all persons with any mental disorder listed in the DSM can never meet these requirements, and thus the standard is facially invalid under the ADA.

A.	The Blanket Exclusion Is Not Job-Related and Consistent with Business Necessity

The employment qualification standard at issue in this case categorically excludes an entire class of individuals on the basis of disability – every person with any "apparent mental disorder." See Tenn. Code Ann. §38-8-106(9). With respect to such "[qualification] standards that may exclude an entire class of individuals with disabilities," the EEOC has stated that

"Blanket" exclusions of this kind usually have been established because employers believed them to be necessary for health or safety reasons...Employers who have such standards should review them carefully. In most cases, they will not meet ADA requirements[,...since g]eneralized "blanket" exclusions of an entire group of people with a certain disability prevent [the] individual consideration [required by the ADA].

EEOC's Technical Assistance Manual on Title I of the ADA at §4.4 (emphasis added).11 This interpretation is based upon and fully consistent with the ADA's legislative history, which makes clear that it is individualized assessment, and not blanket exclusions, that must be employed to determine whether an individual is qualified for employment in any given position:

[The ADA] prohibits the use of a blanket rule excluding people with certain disabilities except in the very limited situation where in all cases [a] physical [or mental] condition by its very nature would prevent the person with a disability from performing the essential functions of the job, even with reasonable accommodation.

S. Rep. No. 116, 101st Cong., 1st Sess. 27 (1989) (Senate Report) (emphasis added).

Consistent with Congress' intent as expressed in the ADA, courts have struck down disability-based blanket exclusions such as the qualification standard at issue in this case, both in and out of the employment context. For example, in Stillwell v. Kansas City, Missouri Board of Police Commissioners, 872 F.Supp. 682 (W.D. Mo. 1995), the court held that a local licensing authority's policy to deny armed security guard licenses to people with one hand violated the ADA because it did not consider an individual's actual abilities to perform the essential functions of the job of a security guard and instead relied on stereotypical assumptions that a person with one hand could not safely perform such functions. Similarly, courts have invalidated blanket exclusions in a numerous cases involving insulin-dependent diabetics, finding that "[t]he [ADA] makes it clear that blanket exclusions are to be given the utmost scrutiny." Bombrys v. City of Toledo, 849 F.Supp. 1210, 1220 (N.D. Ohio 1993). See, e.g., EEOC v. Chrysler Corp., 917 F.Supp. 1164 (E.D. Mich. 1996), rev'd on other grounds, 172 F.3d 48 (6th Cir. 1998); Sarsycki v. United Parcel Service, Inc., 862 F.Supp. 336 (W.D. Okl. 1994) (same).12

The blanket exclusion at issue here is defined with specific reference to the DSM, and thus its scope of coverage includes every "mental disorder" listed in the DSM. The DSM is intended to be comprehensive and exhaustive, cataloging and describing any and all conditions with which psychiatrists may diagnose an individual seeking psychiatric treatment, ranging from common afflictions such as mild depression or insomnia to more serious conditions such as bi-
polar disorder and schizophrenia. Thus, the DSM includes many conditions that, while they may substantially limit one or more of an individual's major life activities and thus amount to "disabilities" under the ADA, do not necessarily impose any limitations at all on the individual's ability to perform the essential functions of the position at issue.13 For example, the DSM-IV includes descriptions of certain sexual dysfunctions and eating disorders that could substantially affect a major life activity such as reproduction or eating but which have no effect whatsoever on an individual's ability to perform the duties of a police officer.

Blanket exclusions will rarely be job-related and consistent with business necessity. See, e.g., Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999); EEOC v. Exxon Corp., 203 F.3d 871 (5th Cir. 2000). As provided in the ADA, in order for any employment qualification standard to be considered "job-related and consistent with business necessity," it must relate to the "essential functions" of the specific job to which it is being applied and measure the individual's actual ability to perform those functions. See 29 C.F.R. §1630.10, App.; EEOC Technical Assistance Manual for Title I of the ADA at §4.3.14 "It is not enough that [a standard] measures qualifications for a general class of jobs" – rather, to be job-related and consistent with business necessity, the standard must relate directly to the specific job for which the individual is being considered, and measure the individual's ability to perform the essential functions of that particular job. Id. at §4.3(1) (emphasis added).15 Thus, in order to prevail on a claim that the blanket exclusion at issue in this case is job-related and consistent with business necessity under the ADA, Defendants would have to prove that the requirement that individuals "be free of all apparent mental disorders listed in the DSM" directly relates to ability of such individuals to perform a specific, concrete job function that is "essential" to the performance of all police officer positions in the state. Defendants cannot carry this burden.16

Defendants cannot show that the blanket exclusion directly measures skills required by the job of police officer or the actual ability of individuals to perform the essential functions of that position. In fact, by categorically excluding all individuals with any apparent mental disorder at any stage of employment, including those who have successfully worked as police officers for years, the standard requires employers to ignore the best evidence of the individual's actual ability to perform the functions of the police officer position. "Once an employee is on the job, the actual performance on the job is, of course, the best measure of his ability to do the job." Senate Report at 38; Labor Report at 74.17

Rather than pertaining to a specific essential job function, the standard at issue in this case simply excludes an entire class of individuals with disabilities because they are presumed to pose a safety threat. Consequently, because the standard does not measure an individual's actual ability to perform the essential functions of the job of police officer, it is not job-related and consistent with business necessity.18 Thus, the only way for Defendants to establish that this qualification standard is lawful under the ADA is to prove that it meets the ADA's criteria for a qualification standard that excludes individuals who pose a direct threat.

B.	The Blanket Exclusion Cannot Be Justified Under the "Direct Threat" Provision

As shown, this employment qualification standard does not measure the ability of individuals to perform the essential functions of the position of police officer; instead, it presumes the inability of an entire class of individuals to perform those functions safely. As such, it falls into the category of qualification standards that exclude categories of individuals that, regardless of their skills or abilities, are deemed to pose an unacceptable safety risk. Although such standards are not always unjustified, they are significantly more susceptible to employer speculation and stereotyping on the basis of disability – precisely what the ADA was intended to prohibit. Because such standards are imposed for the purpose of protecting public health and safety, they are only valid under the ADA if they qualify under its express provision regarding safety standards imposed for this purpose – the "direct threat" provision. See 42 U.S.C. §12113(b); see also Judiciary Report at 486 ("If the [individual] is otherwise qualified for the job, he or she cannot be disqualified on the basis of a physical or mental condition unless the employer can demonstrate that the [individual's] disability poses a direct threat to others in the workplace.")

For Defendants to justify this qualification standard under the direct threat provision, they bear the substantial burden of proving that any individual with any mental disorder listed in the DSM who applies for a job as a police officer will necessarily pose a "direct threat" to the health or safety of others – that is, a significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation. 42 U.S.C. §12113(b). It is simply not sufficient for Defendants to make the conclusory assertion that the entire class of individuals who have any kind of mental disorder listed in the DSM may potentially pose a direct threat – they must demonstrate that this is in fact the case.19 Given the overbreadth of the statutory provision – requiring the blanket exclusion of all individuals with "mental disorders" no matter whether they are diagnosed with insomnia or paranoid schizophrenia – this burden cannot possibly be met. As the Supreme Court observed in the seminal direct threat case, "[t]he fact that some persons who have contagious diseases may pose a serious health threat to others under certain circumstances does not justify excluding...all persons with actual or perceived contagious diseases." School Board of Nassau County v. Arline, 480 U.S. 273, 285 (1987).

First, to meet the "direct threat" standard, there must be a "significant" risk of substantial harm, and it cannot be either speculative or remote. In Bragdon v. Abbott, 524 U.S. 624 (1998), the U.S. Supreme Court discussed the origin of the ADA's "direct threat" provision:

The ADA's direct threat provision stems from the recognition in [Arline] of the importance of prohibiting discrimination against individuals with disabilities while protecting others from significant health and safety risks...Because few, if any, activities in life are risk-free, Arline and the ADA do not ask whether a risk exists, but whether it is significant.

Id., 524 U.S. at 649 (emphasis added, internal citations omitted).20 The direct threat standard thus represents the balance struck by the Court in Arline and codified by Congress in the ADA, advancing the "goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of [employers] as avoiding exposing others to significant health and safety risks." Arline, 480 U.S. at 287. It is precisely because persons with disabilities have long been excluded from jobs on the assumption that they may pose some greater risk of injury or accident that Congress saw fit to define as "significant" the level of risk an employer must show to justify disqualifying an individual whose disability poses a potential health or safety risk. 42 U.S.C. §12111(3).21

Secondly, the specific risk alleged must be identified and assessed on a case-by-case basis, based on objective medical or other factual evidence relating to the individual in question.22 "Whether one is a direct threat is a complicated, fact-intensive question, not a question of law. To determine whether a particular individual performing a particular act poses a direct risk to others is a matter for the trier of fact to determine after weighing all the evidence about the nature of the risk and the potential harm." Rizzo v. Children's World Learning Centers, Inc., 84 F.3d 758, 764 (5th Cir. 1996) ("Rizzo I").23 Thus, courts have struck down safety-based blanket exclusions of insulin-dependent diabetics that the employers had attempted to defend under the direct threat provision precisely because no individualized assessment was conducted. See, e.g., EEOC v. Chrysler Corp.; Bombrys; Sarsycki; see also Stillwell (no individualized assessment of one-handed person's ability to perform the essential functions of the job of a security guard); Krocka (no individualized assessment where police officers taking Prozac were automatically placed under a special monitoring program).24

In a case involving another of the qualification standards for police officers mandated by the same statute at issue in this case, the Sixth Circuit recently reaffirmed that it is this basic principle of individualized assessment that "lies at the heart of the ADA." Holiday v. City of Chattanooga, 206 F.3d 637, 643 (6th Cir. 2000).25 The Court explained that:

The ADA mandates an individualized inquiry in determining whether an employee's disability or other condition disqualifies him from a particular position. In order to properly evaluate a job applicant on the basis of his personal characteristics, the employer must conduct an individualized inquiry into the individual's actual medical condition, and the impact, if any, the condition might have on that individual's ability to perform the job in question.

Id. at 646-7 (citations omitted).26

In Holiday, the Court was not presented with the question of whether the statutory requirement itself – which merely requires that persons pass a physical exam to be police officers27 – was valid, but whether the City had violated the ADA by the manner in which it had purportedly interpreted the requirement – essentially, by reading into it a blanket qualification standard that police officers "be free" of HIV. The Sixth Circuit rejected the City's attempt to hide behind the statute, holding that the plaintiff had presented sufficient evidence to permit a jury to conclude that

[the City had] failed to undertake the individualized determination that the ADA requires and instead disqualified [the plaintiff] because of his HIV status – without any indication that [his] condition actually impeded his ability to perform as a police officer[, that the City's claim] that [the plaintiff] was not hired for the non-discriminatory reason that he did not fulfill the statutory requirements...is mere pretext[, and] that the City in fact withdrew its employment offer because of its fears that [the plaintiff] would transmit HIV on the job.

Id. at 644, 646-7.28 Just as the ADA prohibited the City employer in Holiday from relying upon an unsubstantiated medical conclusion that a person with HIV was unable to serve as a police officer, and instead required the City to conduct an individualized assessment of the actual impact of the plaintiff's disability on his ability to safely perform the essential functions of the job, the ADA must also prohibit the blanket exclusion of people with any "apparent mental disorder" in this case.

II.	Statutory Provisions Mandating a Discriminatory Employment Qualification Standard Are Preempted by the ADA and Have No Legal Force or Effect

"It is well settled that under the Supremacy Clause a state statute which conflicts with a federal statute cannot stand." EEOC v. County of Allegheny, 705 F.2d 679 (3rd Cir. 1983) (state age limit on police officers preempted by ADEA), citing Jones v. Rath Packing Co., 430 U.S. 519, 525-526 (1977); EEOC v. State of Illinois, 69 F.3d 167 (7th Cir. 1995) (state school retirement code preempted by ADEA); Oconomowoc Residential Programs, Inc. v. City of Greenfield, 23 F.Supp.2d 941 (E.D. Wis. 1998) (discriminatory state zoning statutes preempted by ADA); Coleman v. Casey County Board of Education, 510 F.Supp. 301, 303 (W.D. Ky. 1980) (safety regulation preventing man with one leg from driving school bus preempted by Rehabilitation Act); T.E.P. v. Leavit, 2 A.D. Cases (BNA) 1299 (D. Utah 1993) (holding that the ADA preempted a state domestic relations law).29 Preemption "is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." Gade v. National Solid Wastes Management Ass'n, 112 S.Ct. 2374, 2383 (1992). In the instant case, preemption is both express and implied.

Express preemption occurs when a statute or its legislative history actually states that the statute is intended to preempt laws. Id. Implicit preemption occurs when "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), or when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67 (1941); Felder v. Casey, 487 U.S. 131, 138 (1988); Perez v. Campbell, 402 U.S. 637, 649 (1971). In deciding whether federal law implicitly preempts state law, the Court's task is simply "to determine whether state regulation is consistent with the structure and purpose of the [federal] statute." Gade, 112 S.Ct. at 2383. When an inconsistency exists, state law must yield, even if the state law involves an area that has traditionally been a subject of state regulation. Id.30

Express statements made in the ADA and its legislative history make clear that Congress intended to preempt state laws when they impair the employment opportunities of persons with disabilities. Section 501(b) of the ADA, 42 U.S.C. §12201(b), addresses preemption in the following terms:

Nothing in [the ADA] shall be construed to invalidate or limit the remedies, rights and procedures of any Federal law or law of any State...that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this Act.

By providing an express exemption from preemption for those state laws that provide an equal or greater level of protection, Congress plainly expressed its intent that all laws that conflict with the ADA are preempted. Title I also contains an express limitation on the ADA's preemption of state laws regarding food handling and persons with communicable diseases:

(3) Construction. Nothing in this Act shall be construed to preempt, modify, or amend any State, county, or local law, ordinance, or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation...

42 U.S.C. §12113(d). If Congress had not intended the ADA to preempt conflicting state laws, there would be no need for either of these explicit provisions.31 See also EEOC Technical Assistance Manual for Title I of the ADA at §4.6(2) ("An employer may not rely on the existence of a state or local law that conflicts with ADA requirements as a defense to a charge of discrimination.") Therefore, because the statutory provisions at issue in this case conflict with the ADA, they are preempted and have no legal force or effect.

A.	Employers May Not Rely Upon the Statutory Provisions as a Defense to a Claim of Unlawful Discrimination Under the ADA

In an attempt to make an end-run around the ADA's preemption of conflicting state statutes, Defendants argue that "the ADA does not require an employer to accommodate a person's disability by ignoring duties imposed by state or federal statute." See Defendant's Memorandum of Law, p. 13. Defendants make no argument and cite only two cases for this proposition, neither of which provide any support for the claim that Defendants were even permitted (much less bound) to comply with the blanket exclusion mandated by the statutory provision at issue in this case rather than the ADA.

First, Defendants appear to confuse the question presented in this case – involving the validity of a state statutory provision that directly violates the ADA – with the issue presented in cases involving certain federal regulations which the ADA specifically permits employers to implement. Defendants cite Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999), in which the Supreme Court held that an employer could implement federal DOT vision standards applicable to commercial truck drivers without violating the ADA. Id. at 577-78. However, that case and similar cases upholding the validity of federal regulations are wholly inapposite to the instant case. The ADA specifically permits compliance with other federal laws:

Conflict with other Federal laws. It may be a defense to a charge of discrimination...that a challenged action is required or necessitated by another Federal law or regulation, or that another Federal law or regulation prohibits an action (including the provision of a particular reasonable accommodation) that would otherwise be required...

29 C.F.R. §1630.15(e).32 However, neither this provision nor Albertson's has anything to say about compliance with conflicting state laws, since such laws are preempted.

Secondly, Defendants confuse the concept of a job's essential functions, or "job duties," with what is at issue in this case – an employment qualification standard that categorically excludes a class of individuals with disabilities – and imply that they are the same thing. Defendants cite Brickers v. Cleveland Board of Education, 145 F.3d 846 (6th Cir. 1998), in which the Sixth Circuit ruled that lifting was an "essential function" of a state school bus attendant position, despite the fact that it may only be required during emergencies, and relied in part on the fact that a state statute outlining qualification standards for bus attendants required that such employees have the "[p]hysical capability of appropriately lifting and managing handicapped pupils when necessary." Id. at 850; see Ohio Admin. Code §3301-83-06(D)(1).33

Defendants' citation of the Brickers case as support for their claim that the blanket exclusion at issue in this case must be honored simply because the state mandates it belies their fundamental misunderstanding of the ADA's requirements regarding employment qualification standards. Brickers concerned the proper definition of an "essential function" under the ADA, which is a purely analytical, fact-based exercise designed to determine what specific functions are so essential to a job that an employer may require all employees to perform them, regardless of disability, with or without reasonable accommodation. In other words, as long as a given job function is "essential," employers may require all employees to perform that function notwithstanding the fact that imposition of such a requirement may screen out certain individuals with disabilities who cannot perform the function even with reasonable accommodation. The ADA provides a list of several factors to be considered in determining whether a given job function is "essential," and specifically gives consideration to the employer's judgment in this regard. See 42 U.S.C. §12111(8). In Brickers, the Court simply concluded that state law – which is tantamount to the employer's judgment where the state is the employer – was relevant to its determination whether the actual job function of lifting was, in fact, "essential" to the performance of the position of bus attendant.

The Court's analysis of the "essential functions" question in Brickers has no bearing on this case, which involves the validity, not of an employer's claim that a given function of one of its jobs is "essential," but of an employment qualification standard imposed upon the employer by the state – a standard which, by its nature, is imposed as a threshold requirement prior to any consideration of the individual's ability to perform any particular job function. Thus, the Court's holding in Brickers provides no support for Defendants' claim that they were obliged to comply with conflicting state law rather than the ADA. Because the requirements of the statutory provisions conflict with the requirements of ADA, the statutory provisions are preempted and have no legal force and effect. Consequently, as an invalid employment qualification standard, the existence of Tenn. Code Ann. §38-8-106(9) can have absolutely no bearing on the question whether Plaintiff is a "qualified individual with a disability" and thus covered by the ADA, see Defendants' Memorandum of Law, p. 13, and Defendants are estopped from relying upon the statute as any kind of defense to Plaintiff's claim of unlawful discrimination.34

B.	Employers May Be Held Fully Liable for Their Violations of the ADA Notwithstanding the Statutory Provisions

Numerous cases have held that employers are liable for violating federal civil rights laws regardless of the fact that they may have been acting pursuant to state law, where the state law conflicted with and was therefore preempted by the federal statute. As the Seventh Circuit put it, such employers may feel "compelled to follow the directive from the state, but the Supremacy Clause of the Constitution requires a different order of priority. A discriminatory state law is not a defense to liability under federal law, it is a source of liability under federal law." Quinones v. City of Evanston, 58 F.3d 275, 276 (7th Cir. 1995) (emphasis added), citing Williams v. General Foods, 492 F.2d 399, 407-08 (7th Cir. 1974) (reliance on state statute improper defense to Title VII action). In Quinones, the Seventh Circuit affirmed the district court's denial of the city's motion for summary judgment in an ADEA case, based on the court's conclusion that "a political subdivision of a state is not shielded from liability for employment discrimination in violation of [federal law] merely because its actions were mandated by contrary state law." Quinones v. City of Evanston, 829 F.Supp. 237, 240 (N.D. Ill. 1993).

Other circuit courts have reached the same conclusion. See, e.g., EEOC v. County of Allegheny, 705 F.2d 679, 682 (3rd Cir. 1983) (holding that a county could not invoke its reliance upon a state statute as a defense to its refusal to allow individuals over 35 years old to take the police examination in violation of the ADEA, since "reliance on [ ] an unconstitutional statute cannot justify employment discrimination"); Rosenfield v. Southern Pacific Co., 444 F.2d 1219, 1227 (9th Cir. 1971) (state requirement did not excuse company's discriminatory policy); see also Kober v. Westinghouse Elect. Corp., 480 F.2d 240, 245-46 (3rd Cir. 1973) ("conclud[ing] that it is now the law that discrimination based on reliance on conflicting state statutes is an intentional unfair employment practice" and collecting cases); and Davis v. City of Camden, 657 F.Supp. 396, 402-04 (D.N.J. 1987) (collecting cases in related areas). Therefore, because the statutory provisions violate and conflict with the ADA, they are facially invalid and preempted under the Supremacy Clause. Just as Defendants may not violate the ADA by implementing the blanket exclusion mandated by the invalid statutory provisions, they also may not invoke them as a defense to a claim of unlawful discrimination under the ADA.

CONCLUSION

For the foregoing reasons, the United States urges this Court to make the following findings as a matter of law, and to rule on Defendants' Motion for Summary Judgment accordingly: (1) Tenn. Code Ann. §38-8-106(9) and other statutory provisions mandating the blanket exclusion from employment of all persons with "any apparent mental disorder" violate the ADA, and are therefore facially invalid, and (2) Tenn. Code Ann. §38-8-106(9) and other statutory provisions mandating the blanket exclusion from employment of all persons with "any apparent mental disorder" conflict with and thus are preempted by the ADA, and employers who implement this invalid statutory provision have violated the ADA and may not invoke the statute as a defense to liability for such violations.

Respectfully submitted,

BILL LANN LEE

Assistant Attorney General

Civil Rights Division

By: _____________________________

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS, Deputy Chief

PHILIP L. BREEN, Special Legal Counsel

M. CHRISTINE FOTOPULOS, Attorney

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

(202) 305-7475

Dated: December ____, 2000

CERTIFICATE OF SERVICE

Pursuant to Local Rule 7.2, I, M. Christine Fotopulos, declare:

I am over the age of 18 and not a party to the within action. I am employed by the U.S. Department of Justice, Civil Rights Division, Disability Rights Section. My business address is 1425 New York Avenue, Suite 4039, Washington, D.C. 20005.

On December 4, 2000, I served a true and correct copy of the attached document

UNITED STATES' BRIEF AS AMICUS CURIAE IN RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

on each person or entity named below by enclosing a copy in an envelope addressed as shown below and depositing the same with Federal Express for priority overnight delivery.

Date and Place of Service: December 4, 2000, Washington, D.C.

Person(s) and/or Entity(ies) to Whom Mailed:

Justin S. Gilbert, Esq.	Pamela L. Reeves

The Gilbert Firm	Watson, Hollow & Reeves

300 E. Main Street, Suite 200	1700 First Tennessee Plaza

Jackson, TN 38301	800 South Gay Street

Knoxville, TN 37901

Attorney for Plaintiff

Attorney for Defendants

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed on: December 4, 2000, at Washington, D.C.

_____________________________

M. Christine Fotopulos