SANDERS, Senior District Judge.
After making the required independent review, the Court
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
BOYLE, United States Magistrate Judge.
Before the Court is the
This is an Americans With Disabilities Act ("ADA") case in which plaintiff, the Equal Employment Opportunity Commission ("EEOC"), contends that Exxon's Alcohol and Drug Use Policy ("policy") violates the ADA. The policy, which has been detailed in previous filings by this Court and the District Court, bars rehabilitated substance abusers from certain safety-sensitive jobs. In defense of its policy, Exxon has advanced certain affirmative defenses which the EEOC contends are deficient as a matter of law. On October 15, 1997, the EEOC filed a motion to strike Exxon's affirmative defenses pursuant to Fed.R.Civ.P. 12(f). Upon review of the motion, the District Court determined that the legal viability of Exxon's affirmative defenses was more appropriately determined pursuant to a motion for summary judgment under Fed.R.Civ.P. 56. With this in mind, on December 15, 1997, the District Court entered an Order construing the EEOC's motion to strike as a motion for summary judgment, permitting additional pleading pursuant to Rule 56 and re-referring the motion to the undersigned for hearing and recommendation. On January 8, 1998, the EEOC, filed its supplemental brief in accordance with the District Court's December 15, 1997 Order. Exxon filed its response on January 23, 1998.("Def's. Resp. Br. filed Jan. 23, 1998."). A reply brief was filed by the EEOC on January 29, 1998.("Pl's.Reply"). The EEOC's challenge to Exxon's affirmative defenses is now ripe for review.
In its motion, the EEOC takes issue with three of Exxon's affirmative defenses.
The undersigned will address each of the EEOC's challenges to Exxon's affirmative defenses. First, however, the Court will review the summary judgment standards which guide this analysis.
Summary Judgment Standards
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Only disputes about those facts will preclude the granting of summary judgment. Id. In a motion for summary judgment, the burden is on the movant to prove that no genuine issue of material fact exists. Latimer v. Smithkline & French Lab., 919 F.2d 301, 303 (5th Cir.1990). If the non-movant bears the burden of proof at trial, the movant for summary judgment need not support the motion with evidence negating the opponent's case; rather, the movant may satisfy its burden by showing that there is an absence of evidence to support the non-movant's case. Id.; Little, 37 F.3d at 1075.
Once the movant makes this showing, the burden shifts to the non-movant to show that summary judgment is not appropriate. Little, 37 F.3d at 1075 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986)). "This burden is not satisfied with `some metaphysical
In determining whether a genuine issue for trial exists, the court must view all of the evidence in the light most favorable to the non-movant. Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96, 98 (5th Cir. 1996)(per curiam); Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 292 (5th Cir. 1990). If the moving party seeks to establish the absence of a material fact through the submission of affidavits, depositions, admissions, or responses to interrogatories, the non-movant may not rely solely on mere allegations or denials. Rather, the non-movant must demonstrate the existence of an issue of material fact necessitating resolution by trial through similar evidentiary materials setting forth specific facts. FED. R. CIV. P. 56(e); Lechuga v. Southern Pac. Transp. Co., 949 F.2d 790, 794 (5th Cir.1992).
With these standards in mind, the Court begins its review of Exxon's affirmative defenses.
1. Business Necessity
Exxon maintains that its policy of excluding rehabilitated substances abusers from safety-sensitive positions is defensible as a "business necessity" under the ADA. The ADA permits an employer to impose qualification standards that screen out the disabled so long as those standards are shown to be "job-related" and "consistent with business necessity." 42 U.S.C. § 12112(b)(6). Exxon relies on several factors to justify its policy as a business necessity. In addition to safety, Exxon claims its "concerns for the environment, potential tort and criminal liability, unique corporate citizenship concerns and commitments" combine to vindicate its policy under the ADA.
With these divergent views of the business necessity defense as a backdrop, the issue before the Court is whether Exxon is relegated to defending its safety-based policy as "consistent with business necessity" under the rigorous direct threat standard or whether the Act permits the more broad-based business necessity defense urged by Exxon.
Whichever view of the Act is correct, no Circuit appears to have addressed this precise
In addressing this issue, the Court first turns to the relevant portions of the ADA.
A. The ADA
To determine the appropriate standard of defense for safety-based qualification criteria under the ADA, the court naturally looks first to the statute itself. "The starting point in every case involving construction of a statute is the language itself." Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979) (other citations omitted). If it is determined that Congress has directly spoken on the precise issue, no further inquiry of the legislative history or corresponding regulations is necessary, and the court must "`give effect to the unambiguously expressed intent of Congress.'" United Services Automobile Association v. Perry, 102 F.3d 144, 146 (5th Cir.1996) (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694, (1984)). "A statute is ambiguous if it is susceptible of more than one accepted meaning." Perry, 102 F.3d at 146 citing MCI Telecommunications Corp. v. American Tel. & Tel. Co., 512 U.S. 218, 114 S.Ct. 2223, 2230, 129 L.Ed.2d 182 (1994) (other citations omitted). If a statute is silent or ambiguous on the matter at issue, the court must look to the agency's construction of the statute to determine if it is a permissible construction. Reich v. Arcadian Corp., 110 F.3d 1192, 1195 (5th Cir.1997)(citing Perry, 102 F.3d at 146).
Unfortunately, the ADA itself provides little instruction on the interplay between the business necessity defense, safety-related qualification standards and the direct threat test. The Act, while addressing in general terms the legal justification for qualification standards which screen out the disabled, does not address the specific question at issue in this case — whether a safety-based policy like Exxon's may be defended under the general business necessity standard set forth in § 12112(b)(6) and § 12113(a) without satisfying the direct threat test.
B. The EEOC's Regulations
When the statute itself is silent or ambiguous on an issue to which the agency's regulations provide an answer, the court must decide whether the agency's answer is based on a permissible construction of the statute. Reich, 110 F.3d at 1195 (citing Perry, 102 F.3d at 146). In construing the regulations, the court is mindful that, "`[t]he power of an administrative agency to administer a congressionally created... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.'" Chevron, 467 U.S. at 843, 104 S.Ct. at 2782, (quoting Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974)). "[C]onsiderable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer." Chevron, 467 U.S. at 844, 104 S.Ct. at 2782 (other citations omitted).
Turning, then, to the ADA's implementing regulations, the Court finds that they provide considerable guidance on the issue of the permissible standard for the defense of safety-based qualification standards.
First, the regulations supply a definition of qualification standards, not provided in the Act, describing them as: "the skill, experience, education, physical, medical, safety and other requirements established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired." 29 C.F.R. § 1630.2(q) (emphasis added). The regulations also reiterate the statutory proscription that employers may not discriminate by utilizing qualification standards that screen out or tend to screen out individuals with disabilities unless the standards are job-related and consistent with business necessity. 29 C.F.R. § 1630.10; see also 42 U.S.C.A. § 12112(b)(6); 42 U.S.C.A. § 12113. The EEOC's Interpretive Guidance to the ADA, set forth in the appendix to the regulations, interprets this broad proscription by advising that a qualification standard that is not related to an essential function of the job is not consistent with business necessity. 29 C.F.R. Part 1630 App. § 1630.10.
With the agency's answer to the issue at hand, the Court must now determine whether its construction of the statute is authorized under the Act. Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82. In deciding whether an agency's construction of a statute is permissible, the court should look to whether the agency's interpretation is reasonable "in light of the Act's text, legislative history and purpose." Southern California Edison Company v. Federal Energy Regulatory Commission, 116 F.3d 507, 511 (D.C.Cir.1997)(citing Republican Nat'l Comm. v. FEC, 76 F.3d 400, 406 (D.C.Cir. 1996)); see also City of Cleveland, Ohio v. United States Nuclear Regulatory Commission, 68 F.3d 1361, 1367-68 ((D.C.Cir.1995)(citing Chevron, 467 U.S. at 845, 104 S.Ct. at 2783))("if agency's interpretation `represents a reasonable accommodation .... we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.'"). As will be set forth below, all of these considerations weigh in favor of finding that Exxon must meet the direct threat test to justify its policy as a business necessity.
(1) The Statutory Scheme of the ADA
Looking first to the text of the ADA, the Court finds that general principles of statutory construction favor the EEOC's construction of the statute regarding the applicability of the direct threat standard to safety-based qualification standards. A basic rule of statutory construction is that the whole of the statute should be considered in ascertaining the meaning of language therein. 2 A Sutherland, Statutory Construction § 46.05 (5th ed.1992). In attempting to determine the plain meaning of a statute, the court must look not only "to the particular statutory language at issue" but also to the language and design of the statute as a whole. Perry, 102 F.3d at 146 (other citations omitted). "It is a well-settled canon of statutory construction that the provisions of a unified statutory scheme should be read in harmony, leaving no provision inoperative or superfluous or redundant or contradictory." Holley v. United States, 124 F.3d 1462, 1468 (Fed.Cir.1997)(citing Moskal v. United States, 498 U.S. 103, 109-10, 111 S.Ct. 461, 465-66, 112 L.Ed.2d 449 (1990)); Union Pacific Corp. v. United States, 5 F.3d 523, 526 (Fed.Cir.1993). Statutory construction principles also direct that one provision of a statute "should not be interpreted in a way which is internally contradictory or that renders other provisions of the same statute inconsistent or meaningless." Hughes Air Corp. v. Public Util. Com'n, 644 F.2d 1334, 1338 (9th Cir.1981).
If, as Exxon argues, the ADA permits a defense of safety related policies short of the direct threat test, then the insertion of the direct threat requirement would seem to serve no purpose. It defies logic that an employer would choose to defend a safety-based policy under the direct threat test when it may utilize the less exacting business necessity standard to exclude an employee or group of employees who present safety hazards. In other words, to permit Exxon's interpretation of the business necessity defense to stand would arguably render the direct threat test superfluous. "[C]ourts should disfavor interpretations of statutes that render language superfluous." Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992). Thus, the text of the ADA interpreted in view of settled principles of statutory construction favors the agency's construction of the statute.
The ADA's legislative likewise supports this interpretation of the statute.
(2) The ADA's Legislative History
Although the Supreme Court has expressed differing views on the import of legislative
Of particular significance to this inquiry is the reliance in the House Committee Reports on the Supreme Court case of School Board of Nassau County v. Arline;
On the first issue, the court found that her affliction with a contagious disease qualified her for inclusion as a "handicapped person" under the Rehabilitation Act. In so finding, the high court recognized the dangers of discrimination against a person with a contagious condition based upon "prejudiced attitudes or the ignorance of others." 480 U.S. at 284-85, 107 S.Ct. at 1129-30. Focusing, secondly, on whether the teacher was "otherwise qualified" under the Act, the court recognized that a balance had to be struck between the protection of handicapped individuals from discrimination based upon prejudice, stereotypes or unfounded fear and an employer's interest in avoiding exposing others to significant health and safety risks. The court's resolution of these competing concerns was to find that only an individual who posed a "significant risk" of communicating an infectious disease to others, based on reasonable medical judgments, would fall outside the definition of an "otherwise qualified individual." 480 U.S. at 287-88 & n. 16, 107 S.Ct. at 1130-31 & n. 16.
In an effort to protect the disabled from this type of discrimination driven by stereotyping and mythology under the guise of health and safety standards, the House Committee Report adopted Arline's, "significant risk" standard:
By adopting Arline's significant risk standard, this text from legislative history of the ADA manifests a clear Congressional intent to apply a stringent standard to safety-based qualification safety standards that tend to screen out the disabled based on speculative risks of harm. This, in turn, supports the position set forth in the EEOC's regulations that when an employer imposes qualification standards bearing on safety concerns, that the Arline-generated direct threat test provides the exclusive means of defense.
Other portions of the legislative history of the ADA suggest that it is safety-based qualification standards as opposed to other types of qualification standards that are most susceptible to employer speculation and stereotyping and, thus, most in need of exacting review. For example, in addressing qualification standards in general, the House Report contains the following statement:
The House Report advises that job criteria tied to concrete functions of the job — mobility and dexterity for jewelry store security officers are consistent with business necessity if the ability to perform such tasks is necessary to carry out the essential functions of the job. As compared to safety-based qualification standards, determining business necessity under these circumstances appears to be a much more straightforward undertaking because the qualification standard is directly tied to the tasks necessary to do the job. Safety-based qualification standards, on the other hand, are not directly tied to the performance of a concrete function of the job, rather, they are based upon concerns about the safe performance of the essential functions of the job. Because these standards are not directly measured against the tasks necessary to complete the job, they are particularly susceptible to employer speculation and stereotyping precisely what the authors of the ADA's legislative history through the adoption of Arline sought to prevent. In other words, because safety-based qualification standards are, by their nature, more susceptible to employer speculation than qualification standards directly tied to the essential functions of the job, the direct threat test appears the appropriate standard by which carry out the principles embodied in the legislative history and Arline.
In sum, the legislative history of the ADA, by adopting Arline and through its discussion of qualification standards in general, supports a finding that the EEOC's construction of the statute is firmly rooted in its legislative history. And as will be discussed below, the purpose behind the ADA's enactment also furthers this interpretation of the statute.
(3) ADA's Purpose
In determining the purpose behind the creation of the ADA, one need only look to the statute itself. Section 12101(b) of the Act lists its statutory aims. 42 U.S.C.A. § 12101(b). Among the ADA's goals, is to "provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." 42 U.S.C.A. § 12101(b)(2). As the driving force behind its stated objectives, the ADA sets out a litany of Congressional findings on the plight
With the foregoing statutory goals and findings as a backdrop, the undersigned finds again that the EEOC's view of safety standards, as set forth in its regulations, constitutes a reasonable interpretation of the Act. Limiting the defense of safety-based qualification standards to the direct threat test is consistent with the aim of the Act to prevent stereotyping and prejudice against the disabled. In sum, because the purpose of the ADA is furthered by the EEOC's construction of the statute regarding safety standards, the Court finds an additional basis upon which to find that the EEOC's view of the ADA is a permissible one.
C. Business Necessity Defense-Conclusion
In conclusion, despite the lack of case authority or explicit guidance in the ADA itself, the Court finds that Exxon's business necessity defense is subject to the direct threat standard. As stated above, the statutory scheme of the ADA, its legislative history and stated purpose support a finding that safety-based qualification standards which screen out the disabled can only be justified by meeting the direct threat test. Consequently, Exxon's reliance on potential civil and criminal liability, concerns about the environment and its corporate citizenship will not suffice to justify its policy as a business necessity.
2. Equitable Defenses
The EEOC next seeks to bar Exxon from asserting its equitable defenses of judicial estoppel,
A. Judicial Estoppel
The EEOC takes issue with Exxon's judicial estoppel defense contending that it would be inappropriate to apply judicial estoppel in this case because if Exxon prevails on that defense, the EEOC will be estopped from enforcing the ADA as Congress intended. The EEOC argues that the effect of applying judicial estoppel to the Government in this case would be to grant Exxon a "perpetual license to violate the ADA." Pl.'s Reply at 7. Further, the EEOC asserts that the case authority demonstrates that it is rarely appropriate to apply estoppel doctrines to the government. Before addressing the merits of this argument, the general principles of judicial estoppel must be reviewed.
Judicial estoppel is a common law doctrine by which a party may be estopped from asserting a position in a legal proceeding that is inconsistent with a position previously taken in the same or an earlier proceeding. Ergo Science, Inc., v. Martin, 73 F.3d 595, 598 (5th Cir.1996). The judicial estoppel doctrine's purpose is to "to prevent parties from playing fast and loose with the courts to suit the exigencies of self interest." Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir.1988) (citation omitted). Judicial estoppel serves a different purpose than equitable estoppel and therefore, at least one Circuit has held, in some cases, "may apply against the Government when equitable estoppel would not." United States v. Owens, 54 F.3d 271, 275 (6th Cir.), cert. dismissed, 516 U.S. 983, 116 S.Ct. 492, 133 L.Ed.2d 418 (1995). However, as is the case with equitable estoppel, courts construe the doctrine of judicial estoppel narrowly when applied against the Government. Id.
Although the United States Supreme Court has never applied estoppel against the Government, it has declined to adopt an absolute rule that estoppel may never run against the Government. Office of Personnel Management v. Richmond, 496 U.S. 414, 423, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990). However, to date, the Supreme Court has reversed every case it has reviewed in which a federal court of appeals has applied estoppel against the Government. Id., at 422, 110 S.Ct. at 2470. The Supreme Court has explained that it is seldom appropriate to apply estoppel doctrines to the Government because
Heckler, 467 U.S. at 60, 104 S.Ct. at 2224.
There is scant Fifth Circuit authority on the issue of whether or not the judicial estoppel doctrine may be applied against the Government. Further, the two Fifth Circuit cases that have addressed whether judicial estoppel could apply against the Government are not instructive because they involve criminal prosecutions. See Nichols v. Scott, 69 F.3d 1255, 1272 (5th Cir.1995), cert. denied,
In contrast to the Fifth Circuit, the Sixth Circuit has previously been confronted with the issue of whether the judicial estoppel doctrine may be applied against the Government. In Reynolds, the IRS had previously obtained a court-approved compromise that required a taxpayer's spouse to pay taxes on a capital gain resulting from the sale of a leasehold interest and mineral rights in the taxpayer's coal mine. Nevertheless, in a later proceeding, the IRS sought to require the taxpayer to pay taxes on the same capital gain. Reynolds, 861 F.2d at 472. The Reynolds court acknowledged that it is seldom appropriate to apply estoppel doctrines against the government, but nevertheless concluded that the IRS was judicially estopped from taxing the gain to the taxpayer. Id. at 474. In so holding, the court explained that
However, even though the Sixth Circuit applied judicial estoppel against the Government in Reynolds, subsequent decisions make it clear that the circumstances in Reynolds are the exception, rather than the rule. Owens, 54 F.3d at 274 ("the rule of judicial estoppel, even when invoked, should be construed narrowly against the government for the policy reasons stated in Heckler").
With the foregoing case authority as a guide, the Court turns to the facts underlying Exxon's judicial estoppel defense.
In support of its judicial estoppel defense, Exxon attaches several exhibits to support its contention that the EEOC's current position is inconsistent with the position of the Government in the VALDEZ litigation. First, Exxon submits a letter authored by Charles A. De Monaco, a Government official who signed the indictment against Exxon, in which Mr. De Monaco highlights the factual basis for the Government's allegation that Exxon was criminally negligent. Specifically, Mr. De Monaco claimed that Exxon failed "to exercise due care by promulgating and implementing policies that permitted employees suffering from alcohol abuse problems to hold safety-sensitive positions." Def.'s Resp. Br. filed Jan. 23, 1998, Ex. J, at 2.
Secondly, Exxon argues that the position taken by the Government in the VALDEZ litigation, as set forth in the Bill of Particulars filed in connection with the criminal charges brought against Exxon, is inconsistent with the Government's current position. Specifically, in its Bill of Particulars, the Government claimed that those employees "who were responsible for formulating and implementing policies regarding employee alcohol abuse for Exxon USA and its affiliates from 1985 through March 24, 1989," were criminally negligent. Id., Ex. K at 19.
Third, Exxon claims that the Government previously expressed its approval of its existing substance abuse policy in the Government's Memorandum in Aid of Sentencing from the VALDEZ litigation. Def.'s Resp. Br. at 25. The Memorandum in Aid of Sentencing provides as follows:
Id., Ex. L, at 10.
Exxon further contends that the expert witness reports filed by Stuart Gerson and Richard Stewart, two attorneys involved in the Government's prosecution of the VALDEZ litigation, establish that Exxon's adoption of the 1989 substance abuse policy was a significant factor in the Government's decision to settle the civil and criminal prosecutions arising out of the VALDEZ incident. Id., Ex. B, at 8; Ex. Q, at 2. Lastly, Exxon submits the deposition testimony of Lee Raymond, the Chief Executive Officer of Exxon. In his deposition, Raymond testified that shortly after the VALDEZ incident, Exxon was told by both an employee of the Department of Justice and Samuel Skinner
Based on the foregoing exhibits, Exxon argues that in the VALDEZ litigation, the Government asserted that Exxon was criminally negligent for promulgating and maintaining a substance abuse policy that permitted substance abusers to hold safety sensitive positions. Exxon further contends that the Government approved of Exxon's 1989 substance abuse policy, which revised the prior policy, and recommended that Exxon's criminal penalties be reduced because of the adoption of the 1989 policy. According to Exxon, in the instant case, the position of the EEOC is inconsistent with the government's position in the VALDEZ litigation because the EEOC is now challenging the 1989 policy under the ADA on the grounds that it excludes recovered substance abusers from safety sensitive positions.
Having reviewed the foregoing facts underlying Exxon's affirmative defense of judicial estoppel, the Court finds, even accepting Exxon's version of events as true, that its estoppel defense is deficient as a matter of law. Unlike the situation presented in Reynolds, supra the instant case does not involve a "knowing assault on the integrity of the judicial system" in which the Government is playing "fast and loose with the courts." Stated another way, this case does not present a situation where the Government is taking inconsistent positions to suit its self interests. However forceful a stance the Government took on Exxon's policy during the VALDEZ litigation, it was the enactment of the ADA and not the exigencies of self interest that caused it to take a second look at Exxon's 1989 policy. See Owens, 54 F.3d at 274. ("[T]he government should not be unduly hindered from changing its position if that shift is the result of a change in public policy."). Exxon does not contend that the Government took the position during the VALDEZ litigation that its policy complied with the ADA. Indeed, such an inconsistent position would surely render this ADA action suspect under judicial estoppel principles. However, during the VALDEZ proceedings, it would have been impossible for the Government to have taken any position concerning the ADA because the ADA had not yet been enacted. Once Congress enacted the ADA, it became incumbent upon the EEOC to prosecute violations of the ADA. See 29 C.F.R. Part 1630 App. (1997)("The [EEOC] is responsible for enforcement of [the ADA]").
While the enactment of the ADA after the VALDEZ prosecution has undeniably placed Exxon in an difficult situation, Exxon's plight does not warrant estopping the EEOC from prosecuting this ADA suit. For the reasons stated above, such a finding is not supported by the relevant authority. Moreover, such a holding would necessarily imply that during the VALDEZ litigation, Exxon's 1989 substance abuse policy was granted a prospective exemption from compliance with statutes that had yet to be enacted. The very narrow grounds upon which the courts have estopped the Government, do not support such a drastic measure under the facts of this case. This is particularly so where such a ruling would preclude the Government from enforcing a statute. See Heckler, 467 U.S. at 60, 104 S.Ct. at 2224. Accordingly, it is recommended that summary judgment be granted in favor of the EEOC as to Exxon's
B. Unclean Hands and Ratification
The EEOC also seeks to prevent Exxon from presenting its defenses of unclean hands and ratification. With regard to Exxon's unclean hands defense, specifically set forth in paragraph 26 of its First Amended Answer, the EEOC's states simply that "Exxon has not and cannot prove any fraudulent or dishonest conduct on the part of the Government rendering its hands unclean." Pl.'s Supp. Br. at 11. These conclusory assertions by the EEOC are not sufficient to establish that they are entitled to summary judgment under Fed.R.Civ.P. 56. Exxon's ratification theory is also pled in paragraph 26 of Exxon's First Amended Answer. However, other than to state its challenge to this theory of defense, the EEOC has failed to provide the Court with any legal basis upon which this defense should be subject to summary judgment. Consequently, the EEOC's motion for summary judgment on the unclean hands and ratification defenses must be denied.
Finally, the EEOC challenges Exxon's affirmative defense that its policy is "an implementation of a bona fide occupational qualification." Pl.'s Supp. Br. at 10; Def.'s First Amended Answer at ¶ 24. The EEOC takes issue with this defense because, it argues, the ADA does not contain the defense of bona fide occupational qualification ("BFOQ").
Both Title VII and the Age and Discrimination Employment Act of 1967 ("ADEA") contain BFOQ provisions. 42 U.S.C.A. § 2000e-2(e)(1); 29 U.S.C.A. § 623(f)(1); see also Johnson Controls, 499 U.S. at 201, 111 S.Ct. at 1204 (other citations omitted). Under these statutes, the BFOQ provisions permit an employer to discriminate on the basis of "religion, sex, or national origin [or age] in those certain instances where religion, sex, or national origin [or age] is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise," 42 U.S.C.A. § 2000e-2(e)(1); 29 U.S.C.A. § 623(f)(1) The BFOQ provisions of these statutes are narrowly drawn and sparingly applied defenses. Johnson Controls, 499 U.S. at 200-201, 111 S.Ct. at 1204.
As contrasted with Title VII and the ADEA, the ADA does not contain a BFOQ defense. In urging this defense, Exxon relies upon language used by the undersigned in previous findings suggesting the permissibility of a "BFOQ-type impossibility defense under the ADA". Def.'s Resp. Br. at 18 citing Recommendation of the U.S. Magistrate Judge, dated November 18, 1996, at 67. While this Court did suggest the plausibility of a BFOQ-type defense under the ADA, it was in the context of a discussion on the validity of Exxon's blanket policy and whether or not Exxon's failure to conduct individualized assessments rendered their policy per se unlawful under the ADA. See Recommendation of the U.S. Magistrate Judge dated November 18, 1996, at 67.
In finding that Exxon's policy was not per se invalid, this Court relied, in part, on cases under Title VII and the ADEA in which, under the BFOQ provisions of those statutes, blanket policies were found permissible. Id. at 56-67. This Court also relied on cases permitting blanket policies decided under the Rehabilitation Act which contains no BFOQ provision. Id. at 60-61. The Court did not recommend that a BFOQ defense be incorporated into the ADA. Rather, it was the reasoning upon which the courts had relied in the past — under BFOQ and non-BFOQ statutes alike — to uphold blanket policies, that was the focus of the analysis. Based, in part, on these cases, this court found that Exxon's policy was not facially invalid and that the company should be permitted to establish that it was "impossible or impractical" to individually assess each safety-sensitive job applicant. Id at 64-72. The District Court later adopted this portion of the undersigned's findings. See Mem. Opinion, and Order filed July 1, 1997 at 8-12.
In sum, the ADA contains no BFOQ provision. Under this Court's and the District Court's previous holdings, Exxon is, however,
In conclusion, this Court recommends that the Plaintiff's Motion to Strike the Defendant's Affirmative Defenses, filed October 15, 1997, and the Plaintiff EEOC's Supplemental Brief in Support of its Motion to Strike Defendant's Affirmative Defenses, filed January 8, 1998, be
It is further
It is further
As to those cases cited which were decided post-Arline, the court finds them distinguishable in that they were either decided under Title VII, which contains no direct threat test, or turned on issues other than those presently before the court. See Def.'s Resp. Br. filed Jan. 23, 1998 at 12-13 n. 14 (citing Chiari v. City of League City, 920 F.2d 311, 316 (5th Cir.1991); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1113 (11th Cir. 1993); Chandler v. City of Dallas, 2 F.3d 1385, 1395 (5th Cir.1993); and EEOC v. American Airlines, 48 F.3d 164 (5th Cir.1995)).
Exxon cites Johnson and several other cases to support an argument that tort liability may serve as a defense to its policy. Def.'s Resp.Br. filed Jan. 23, 1998 at 15, 16 & n. 18. However, none of these cases support its argument because they do not address the precise issue in this case. Moreover, many courts have rejected tort liability as a defense because "potential liability is too contingent and too broad a factor to amount to a `business necessity.'" Hayes v. Shelby Mem. Hosp., 726 F.2d 1543, 1553-54 n. 15(11th Cir. 1984); Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1492 (10th Cir.1989), cert. denied, 495 U.S. 948, 110 S.Ct. 2208, 109 L.Ed.2d 535 (1990); See also David L. LaPorte, The Conflict and Interaction of the Americans' with Disabilities Act With the Omnibus Transportation Employee Testing Act: Two Modest Proposals to Achieve Greater Synchrony, 45 DePaul L.Rev. 537, 595-600 (1996) (addressing the viability of a tort liability defense under the ADA and noting that courts entertaining this argument in other employment discrimination contexts have been "unsympathetic."). In short, while the courts may ultimately endorse tort liability as a defense to some forms of discrimination, based on their general reluctance to do so thus far, this court declines Exxon's invitation to engraft such a defense onto the ADA under the circumstances of this case.
cert dismissed, 516 U.S. 983, 116 S.Ct. 492, 133 L.Ed.2d 418 (1995)(a case involving judicial estoppel in which the court cited Heckler, for the rule that estoppel is to be applied narrowly against the Government).