## Facts

- Elf Atochem North America, Inc. operated a 24-hour chlorine-manufacturing facility in Portland, Oregon, where chlorine gas releases could cause severe or fatal harm.
- Norman Hutton, hired with known Type I diabetes, worked as a chlorine finishing operator, primarily converting chlorine gas into liquid chlorine.
- Hutton’s diabetes sometimes caused light-headedness, impaired communication, and occasional loss of consciousness; he had a workplace seizure in 1992.
- After the 1992 incident, Elf required Hutton to comply with specified diabetes-management and reporting requirements as a condition of continued employment.
- In 1998, Hutton had another diabetic episode at work; Elf concluded he violated the agreed monitoring/treatment requirements and suspended him.
- Physicians evaluating Hutton differed on the degree of diabetic control but agreed there was no way to guarantee future episodes would not occur.
- A mutually selected diabetes specialist opined Hutton’s control was “fair,” he was not having more frequent episodes, and he could be a productive worker, while still acknowledging no assurance against recurrence.
- Elf terminated Hutton, stating it had no vacant positions that could accommodate his condition but would consider him for a suitable vacancy if one became available.
- Hutton sued for disability discrimination under the ADA and Oregon disability law; the district court granted summary judgment to Elf, and Hutton appealed.

## Issues

1. Whether Hutton was a “qualified individual with a disability,” able to perform the essential functions of the chlorine finishing operator job with or without reasonable accommodation.
2. Whether Hutton’s condition created a “direct threat” to the health or safety of himself or others that justified termination from that position.

## Decision

- The Ninth Circuit affirmed summary judgment for Elf.
- The court held Hutton was not a qualified individual for the chlorine finishing operator position because his unpredictable diabetic episodes posed a direct threat in a high-hazard setting.
- The court concluded Elf’s direct-threat determination was based on reasonable medical judgment and the best available objective evidence.
- The court found no triable issue that Elf was required to reassign Hutton where no suitable vacancy existed; the ADA does not require creating a position or displacing other employees.

## Legal Principles

- An ADA plaintiff must be able to perform a job’s essential functions, with or without reasonable accommodation, to be a “qualified individual.”
- An employer may lawfully exclude an employee who poses a “direct threat” to workplace safety, determined through an individualized assessment grounded in current medical knowledge and/or the best available objective evidence.
- In high-risk industrial work, an unremovable risk of sudden incapacitation may constitute a direct threat even if the employee can perform satisfactorily when asymptomatic.
- Reasonable accommodation may include reassignment to an existing vacant position, but the ADA does not require an employer to create a new job or bump other employees to make a position available.

## Conclusion

The Ninth Circuit held that the safety risks associated with unpredictable diabetic incapacitation in a chlorine-processing role established a direct threat, rendering the employee not qualified under the ADA and parallel Oregon law and justifying summary judgment for the employer.


Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884 (9th Cir. 2001)