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Accordingly, the bleeding and sharing of tools by all employees, far from providing a
legitimate business purpose for requiring a medical examination of Sharp alone, instead
provides further evidence of the discriminatory intent of Prevo's in singling out Sharp
because of his particular disability. If Prevo's was so concerned about the health of Sharp,
his co-workers, and customers, it would have adopted safety measures applicable to all
produce clerks to reduce the risk of transmission of any blood-borne pathogen. That is
what fairness dictates and the law requires. See 29 C.F.R. pt. 1630, App. § 1630.2(r)
(1997) (Interpretive Guidelines) ("An employer may require, as a qualification standard,
that an individual not pose a direct threat to the health or safety of himself/herself or
others. Like any other qualification standard, such a standard must apply to all . . .
employees and not just [**51] to individuals with disabilities.") (emphasis added).
In adopting the ADA, Congress struck a balance between the right of disabled Americans
to be free from discrimination in the workplace, and the right of employers to protect the
health and safety of their employees and customers. Attacking the Chapman amendment,
Representative Weiss observed that "the Chapman amendment flies in the face of the
very purpose of the ADA. The ADA is designed to prohibit the kind of treatment of
affected persons that this amendment specifically authorizes." 136 Cong. Rec. H2471-01,
2482 (daily ed. May 17, 1990) (statement of Rep. Weiss). The same may be said of the
majority opinion. Like the Chapman amendment rejected by Congress, the majority
opinion allows employers to elevate fear over facts, ignorance over information, and
mythology over medicine.
In so doing, the majority opinion places the oppressive weight of discrimination firmly on
the side of employers and thereby destroys the balance Congress created.
For the foregoing reasons, I respectfully dissent. 233 Immigration & Miscellaneous (Non- Compoete,
Worker’s Comp, Sexual Harassment) 23...
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- Spring '08