A story reported by Al Kamen in this morning's Washington Post, and confirmed by yours truly at this morning's oral argument, has news intern Roopa Singh attempting to cover yesterday's oral arguments at the high court. Suddenly, Chief Justice Rehnquist dispatches a marshal to make her remove a tightly coiled head wrap. According to the marshal, Singh's scarf was "bothering some of the justices." According to Singh, the marshal said, "Would you take it off? It's not for religious purposes is it, would you take it off?" Singh went to the bathroom and removed the offending garb. The high court's press office has taken the position that scarves are subsumed in the court's overall ban on "hats."
Singh was sitting toward the back of an alcove packed with reporters. Singh, the American-born child of Indian parents, assures me that the scarf was not worn for religious reasons. Nor, I imagine, is her diamond nose-stud. Evidently the clothing worn by the rest of the Supreme Court gallery is not a problem for the chief. It's just those pesky reporters, seated according to elaborately complicated feudal bloodline. So, as he's done before in situations where women wear pantsuits in his line of vision, or fail to wear jackets, or wear press passes (yes, Rehnquist wants all press passes stowed out of sight once the press corps is seated), the chief interrupts argument to stand and whisper to a marshal, who then wades through the press gallery to noisily remove a reporter because her clothing is distracting. This from a man seemingly undistracted by a colleague seated three chairs to his left, lolling backward in his chair with his eyes shut.
As Singh, a second-year law student at Boalt Hall, is quick to point out, the irony of yesterday's monarchism is that it came on a day in which the court was hearing two free-speech cases. The fact that a head wrap is "bothering" some of the justices suggests only that they need to get out more. Maybe they should hear next month's oral arguments on Atlantic Avenue in Brooklyn. They'd get used to ethnic garb pretty quickly. They might even start to like it.
Today's argument, in Chevron v. Echazabal, involves a prospective Chevron employee with hepatitis C who wants very much to work at a job that will kill him. Mario Echazabal worked for one of Chevron's independent contractors for 20 years. When he applied, in 1992, to work directly for Chevron in its coker unit, he was offered the job on the condition that he passed a medical exam. The examining doctor and four successive doctors turned to for "second opinions" agreed that Echazabal suffers from chronic active hepatitis C, and that continued exposure to the kind of liver toxins present at the coker unit could carry the risk of injury or death. Chevron withdrew its employment offer.
Echazabal sued under a provision of the Americans With Disabilities Act. The district court found that under the ADA an employer can refuse employment to someone if the job would pose a "direct threat" to his health. On appeal, the 9th Circuit reversed the district court, holding that Chevron's "direct threat" defense only applies when the direct threat is to some other employee's health, rather than the health of the employee seeking the job. In other words, the 9th Circuit held that the ADA protects a disabled worker's right to kill himself—but not other people—on the job.
Stephen M. Shapiro argues for Chevron and looks awfully cuddly for a big corporate lawyer. Everyone here agrees that Title I of the ADA makes it a defense for an employer who denies work to a disabled person to impose the simple requirement that workers not pose a "direct threat" to the health and safety of other employees. But Shapiro has to convince the court that "others" in this context means "others or oneself."
Justice Ginsburg immediately queries why Congress didn't write "individual or others" if they meant it. And Justice Kennedy wonders if the court can get around the whole discussion about the "direct threat" defense by deciding that Echazabal just wasn't qualified to do the coker job in the first place.
"It's hard to say he's not qualified when he worked for the other contractor for 20 years," interjects O'Connor. And Justice Breyer argues that the only way the court can really hear this case is by assuming that Echazabal is of course qualified to do his job. That isn't the problem. The problem is, as Breyer puts it: "Why does he want to kill himself?"
"It's an old story," replies Shapiro. "People don't listen to their doctors." Breyer insists that Echazabal doesn't "really want to kill himself." This case is not about suicidal people, it's about people with higher health risks. "The argument is, how risky is it?"
O'Connor asks whether employers don't have competing duties, under state and federal laws, including OSHA, to keep employees away from such health risks.
Lisa Blatt, an assistant to the solicitor general, gets 10 minutes to argue on Chevron's side. The government argument is that the Equal Employment Opportunities Commission, the agency charged with promulgating the ADA regulations, has already defined the "direct threat to others" language of the act to include direct threats to oneself as well. Under a statutory interpretation doctrine called "Chevron" deference (same company, different case), courts must defer to agencies to decide what their own rules mean. Breyer thus ponders the great ontological question: "How do you define 'direct threat to others' as including your self?"
Then Samuel R. Bagenstos rises to argue Echazabal's side. Bagenstos looks about 19 and bears a striking resemblance to Doogie Howser. He spends much of his time distinguishing the facts of his case from the facts of what he calls "the fanciful" case of someone who really does, to quote Justice O'Connor, "want to take a job which the doctor says will kill you." When Bagenstos says that one doctor put his client's risk of death at 1 percent, Stevens cuts in to say: "We'd be making the same legal rule if the risk was 99 percent and two weeks from today."
Several of the justices try to distinguish this case from the line of cases holding that employers may not keep women out of high-risk jobs because women need to be able to make that choice for themselves. Those cases are different, says Souter, because the employer was mixing paternalism with stereotyping. Here, he argues there is no stereotyping. "Paternalism for the non-disabled is alive and well in OSHA," he adds.
Put another way, says Kennedy, the question is "whether or not in this society it's wrong to say an employer should care about his employees."
Breyer notes that the court is not inclined to announce a legal rule that will apply even in the extreme case of a "suicidal worker" who plans "to die with my boots on, and I hope, tomorrow." Bagenstos offers a list of employer remedies in those cases, including civil commitment. Kennedy replies dryly, "In order to avoid paternalism, we're just going to tell employers they can commit their employees."
For the record, I should probably assure my bosses at Microsoft that the chances of my dying in a Supreme-Court-reporting-related incident in the near future are minimal. Unless the marshals someday beat me to death for wearing a turtleneck without a bra.