Chevron U. S. A. Inc. v. Echazabal

bal was not “ ‘otherwise qualified’ ” to perform the job, holding that the ability to perform a job without risk to one’s health or safety is not an “ ‘essential function’ ” of the job. Id., at 1070 .

The decision conflicted with one from the Eleventh Circuit, Moses v. American Nonwovens, Inc., 97 F. 3d 446 , 447 (1996), and raised tension with the Seventh Circuit case of Koshinski v. Decatur Foundry, Inc., 177 F. 3d 599 , 603 (1999). We granted certiorari, 534 U. S. 991 (2001), and now reverse.

Section 102 of the ADA, 104 Stat. 328 , 42 U. S. C. § 12101 et seq., prohibits “discrimination] against a qualified individual with a disability because of the disability ... in regard to” a number of actions by an employer, including “hiring.” 42 U. S. C. § 12112 (a). The statutory definition of “discrimination]” covers a number of things an employer might do to block a disabled person from advancing in the workplace, such as “using qualification standards . . . that screen out or tend to screen out an individual with a disability.” § 12112(b)(6). By that same definition, ibid., as well as by separate provision, § 12113(a), the Act creates an affirmative defense for action under a qualification standard “shown to be job-related for the position in question and ... consistent with business necessity.” Such a standard may include “a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace,” § 12113(b), if the individual cannot perform the job safely with reasonable accommodation, § 12113(a). By regulation, the EEOC carries the defense one step further, in allowing an employer to screen out a potential worker with a disability not only for risks that he would pose to others in the workplace but for risks on the job to his own health or safety as well: “The term ‘qualification standard’ may include a requirement that an individual shall not pose

a direct threat to the health or safety of the individual or others in the workplace.” 29 CFR § 1680.15 (b)(2) (2001).

Chevron relies on the regulation here, since it says a job in the refinery would pose a “direct threat” to Echazabal’s health. In seeking deference to the agency, it argues that nothing in the statute unambiguously precludes such a defense, while the regulation was adopted under authority explicitly delegated by Congress, 42 U. S. C. § 12116 , and after notice-and-comment rulemaking. See United States v. Mead Corp., 533 U. S. 218 , 227 (2001); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 , 842-844 (1984). Echazabal, on the contrary, argues that as a matter of law the statute precludes the regulation, which he claims would be an unreasonable interpretation even if the agency had leeway to go beyond the literal text.

A

As for the textual bar to any agency action as a matter of law, Echazabal says that Chevron loses on the threshold question whether the statute leaves a gap for the EEOC to fill. See id., at 843-844 . Echazabal recognizes the generality of the language providing for a defense when a plaintiff is screened out by “qualification standards” that are “job-related and consistent with business necessity” (and reasonable accommodation would not cure the difficulty posed by employment). 42 U. S. C. § 12113 (a). Without more, those provisions would allow an employer to turn away someone whose work would pose a serious risk to himself. That possibility is said to be eliminated, however, by the further specification that “‘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.” § 12113(b); see also §12111(3) (defining “direct threat” in terms of risk to others). Echazabal contrasts this provision with an EEOC regulation under the Rehabilitation Act of 1973, 87 Stat. 357 , as amended, 29 U. S. C. § 701 et seq., ante

Just as statutory language suggesting exclusiveness is missing, so is that essential extrastatutory ingredient of an expression-exclusion demonstration, the series of terms from which an omission bespeaks a negative implication. The canon depends on identifying a series of two or more terms or things that should be understood to go hand in hand, which is abridged in circumstances supporting a sensible inference that the term left out must have been meant to be excluded. E. Crawford, Construction of Statutes 337 (1940) (expressio unius “ ‘properly applies only when in the natural association of ideas in the mind of the reader that which is expressed is so set over by way of strong contrast to that which is omitted that the contrast enforces the affirmative inference’” (quoting State ex rel. Curtis v. De Corps, 134 Ohio St. 295 , 299, 16 N. E. 2d 459 , 462 (1938))); United States v. Vonn, supra.

Strike two in this case is the failure to identify any such established series, including both threats to others and threats to self, from which Congress appears to have made a deliberate choice to omit the latter item as a signal of the affirmative defense’s scope. The closest Echazabal comes is the EEOC’s rule interpreting the Rehabilitation Act of 1973, 87 Stat. 357 , as amended, 29 U. S. C. § 701 et seq., a precursor of the ADA. That statute excepts from the definition of a protected “qualified individual with a handicap” anyone who would pose a “direct threat to the health or safety of other individuals,” but, like the later ADA, the Rehabilitation

itation Act regulation pairing self and others, the congressional choice to speak only of threats to others would still be equivocal. Consider what the ADA reference to threats to others might have meant on somewhat different facts. If the Rehabilitation Act had spoken only of “threats to health” and the EEOC regulation had read that to mean threats to self or others, a congressional choice to be more specific in the ADA by listing threats to others but not threats to self would have carried a message. The most probable reading would have been that Congress understood what a failure to specify could lead to and had made a choice to limit the possibilities. The statutory basis for any agency rule-making under the ADA would have been different from its basis under the Rehabilitation Act and would have indicated a difference in the agency’s rulemaking discretion. But these are not the circumstances hére. Instead of making the ADA different from the Rehabilitation Act on the point at issue, Congress used identical language, knowing full well what the EEOC had made of that language under the earlier statute. Did Congress mean to imply that the agency had been wrong in reading the earlier language to allow it to recognize threats to self, or did Congress just assume that the agency was free to do under the ADA what it had already done under the earlier Act’s identical language? There is no way to tell. Omitting the EEOC’s reference to self-harm while using the very language that the EEOC had read as consistent with recognizing self-harm is equivocal at best. No negative inference is possible.

There is even a third strike against applying the expression-exclusion rule here. It is simply that there is no apparent stopping point to the argument that by specifying a threat-to-others defense Congress intended a negative implication about those whose safety could be considered. When Congress specified threats to others in the workplace, for example, could it possibly have meant that an employer could not defend a refiisal to hire when a worker’s disability

would threaten others outside the workplace? If Typhoid Mary had come under the ADA, would a meat packer have been defenseless if Mary had sued after being turned away? See 42 U. S. C. § 12113 (d). Expressio unius just fails to work here.

B

Since Congress has not spoken exhaustively on threats to a worker’s own health, the agency regulation can claim adherence under the rule in Chevron, 467 U. S., at 843 , so long as it makes sense of the statutory defense for qualification standards that are “job-related and consistent with business necessity.” 42 U. S. C. § 12113 (a). Chevron’s reasons for calling the regulation reasonable are unsurprising: moral concerns aside, it wishes to avoid time lost to sickness, excessive turnover from medical retirement or death, litigation under state tort law, and the risk of violating the national Occupational Safety and Health Act of 1970, 84 Stat. 1590 , as amended, 29 U. S. C. §651 et seq. Although Eehazabal claims that none of these reasons is legitimate, focusing on the concern with OSHA will be enough to show that the regulation is entitled to survive.

Eehazabal points out that there is no known instance of OSHA enforcement, or even threatened enforcement, against an employer who relied on the ADA to hire a worker willing to accept a risk to himself from his disability on the job. In Echazabal’s mind, this shows that invoking OSHA policy and possible OSHA liability is just a red herring to excuse covert discrimination. But there is another side to this. The text of OSHA itself says its point is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions,” § 651(b), and Congress specifically obligated an employer to “furnish to each of his employees employment and a place of employment which are free from recognized hazards, that are causing or are likely to cause death or serious physical harm to his employees,” § 654(a)(1). Although there may be an open question

Finally, our conclusions that some regulation is permissible and this one is reasonable are not open to Echazabal’s objection that they reduce the direct threat provision to “surplusage,” see Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687 , 698 (1995). The mere fact that a threat-to-self defense reasonably falls within the general “job related” and “business necessity” standard does not mean that Congress accomplished nothing with its explicit provision for a defense based on threats to others. The provision made a conclusion clear that might otherwise have been fought over in litigation or administrative rule-making. It did not lack a job to do merely because the EEOC might have adopted the same rule later in applying the general defense provisions, nor was its job any less responsible simply because the agency was left with the option to go a step further. A provision can be useful even without congressional attention being indispensable.

Accordingly, we reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion.

It is so ordered.