dissenting.
I respectfully dissent from the majority opinion because I believe that the Americans With Disabilities Act prohibited Prevo’s Market from requiring Sharp to submit to a medical examination under the circumstances of this case.
I. Introduction
The Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., ranks as one of the most important civil rights statutes passed in this century. Among other things, the ADA protects millions of disabled Americans from discrimination in employment.. Like other great civil rights statutes, prior to its passage the ADA was subject to last minute amendments that threatened to limit severely the size of its protective umbrella. Representative Chapman offered one such amendment. His proposed amendment provided as follows:
(d) Food Handling Job. It shall not be a violation of this act for an employer to refuse to assign or continue to assign any employee with an infectious or communicable disease of public health significance to a job involving food handling, provided that the employer shall make reasonable accommodation that would offer an alternative employment opportunity for which the employee is qualified and for which the employee would sustain no economic damage.
136 Cong. Rec. H2471-01, 2478 (daily ed. May 17, 1990). While acknowledging that the Centers for Disease Control (“CDC”) has never found a case where Acquired Immune Deficiency Syndrome (“AIDS”) or Human Immunodeficiency Virus (“HIV”) had been transmitted by an infected worker handling food, he nevertheless argued that “[t]he reality is that many Americans would refuse to patronize any food establishment if an employee were known to have a communicable disease.” Id. (statement of Rep. Chapman). Reinforcing the perception-is-reality theme, Senator Jesse Helms asserted that “[rjestau-rant patrons are likely to steer clear of any food service establishment having an employee handling food who is known to have AIDS *1099or any other communicable disease. Despite the fact that available evidence indicates that certain diseases, including AIDS, cannot be transmitted in the process of handling food, that evidence is far from persuasive to many people.” 186 Cong. Rec. S7422-03, 7436 (daily ed. June 6, 1990) (statement of Sen. Helms). ,
Many members of Congress rose in opposition to this amendment. Representative John Lewis lamented that “[t]wenty-five years after the passage of the major civil rights legislation of the 1960’s, we are still hearing the same tired arguments that were used to justify segregated restaurants. They have been dusted off and used again to defend discrimination.” 136 Cong. Rec. H2471-01, 2481 (daily ed. May 17, 1990) (statement of Rep. Lewis). Representative Miller declared that “[t]he sponsor admits there is no evidence that AIDS can be transmitted in food handling, but his amendment allows discrimination in such cases because food handling businesses may be hurt by public perception of AIDS victims.... This may be true. But this is as if businesses 40 years ago had pointed to the public perception of blacks and said our customers will not understand our hiring blacks, so allow us to discriminate against blacks. Nonsense. This Congress should not license discrimination of any kind.” Id. at 2481 (statement of Rep. Miller). Senator Harkin protested that “[t]o pass legislation ... in spite of the clear and convincing, overwhelming medical evidence that AIDS'eannot be transmitted either through air or food is simply to codify ignorance.” 136 Cong. Rec. S7422-03, 7437 (daily ed. June 6, 1990) (statement of Sen. Harkin). Senator Harkin also noted “[t]he thesis of the Americans With Disabilities Act is simply this: That people with disabilities ought to be judged on the basis of their abilities; they should not be judged nor discriminated against based on unfounded fear, prejudice, ignorance, or mythologies; people ought to be judged based upon the relevant medical evidence and the abilities they have.” Id.
Rather than succumb to the pressures of codifying “fear, prejudice, [and] ignorance,” Congress instead adopted an alternative amendment proposed by Senator Orrin Hatch. That amendment charged the Secretary of Health and Human Services with the responsibility of preparing a list of infectious and communicable diseases that could be transmitted through food handling. For those diseases, employers would be able to reassign infected employees. Congress adopted this amendment as part of the ADA.1 In so doing, Congress chose facts over fear, information over ignorance, and medicine over mythology.
Since the 1990 enactment, neither HIV nor AIDS has ever appeared on the list of infectious diseases that could be communicated through the handling of food.2 Yet, despite *1100this medical evidence to the contrary, the majority opinion effectivély adopts, as the law of this circuit, the Chapman amendment and the fear, prejudice, and ignorance it represented.
II. Direct Threat
The Chapman amendment would have authorized employers to reassign to a non-food-handling position any food-handling employee who had a communicable or infectious disease. The employer could do so without relying on any medical evidence that the employee in fact posed a direct threat to coworkers or customers. Similarly, in this case, the majority holds that Prevo’s Market could immediately reassign Sharp to a nonfood-handling position without any reference to any medical evidence that Sharp in fact posed a direct threat to his co-workers or customers. The majority further holds that after reassignment, Prevo’s could then require Sharp to submit to a medical examination in order to confirm that he in fact posed a direct threat to others.
I disagree with both of the majority’s holdings for two reasons. First, I believe that an employer must have some relevant objective medical evidence that a food-handling employee poses a direct threat to others prior to reassigning that employee to a non-food-handling position. See H.R.Rep. No. 101-485(111), at 45 (1990), U.S. Code Cong. & Admin. News at 445, 468 (“The purpose of creating the ‘direct threat’ standard is to eliminate exclusions which are not based on objective evidence about the individual involved.”). Second, an employer can conduct the direct-threat analysis based on objective medical evidence without requiring the employee to submit to a medical examination.
A. Reassignment
With respect to reassignment, in Leckelt v. Board of Comm’rs of Hosp. Dist. No. 1, 909 F.2d 820 (5th Cir.1990), a hospital administrator received word that a nurse was an associate of a patient with AIDS. The administrator immediately launched an investigation into the matter. However, before taking any action in regard to the nurse, the administrator consulted legal counsel and reviewed the hospital’s infection control policies and the applicable guidelines concerning HIV and AIDS promulgated by the CDC and the American Hospital Association. Id. at 822. Based on this information, the hospital administrator then took action in regard to the nurse.
In contrast, here, Dan Prevo admits he took no steps to obtain relevant objective medical evidence as to whether he needed to reassign Sharp. J.A. at 127 (Prevo Dep.). Prevo could have contacted the CDC, an *1101AIDS/HIV information organization, or an infectious disease specialist. In fact, Sharp gave him the names of several organizations to call and the name of Sharp’s personal physician — an infectious disease specialist. J.A. at 98-94 (Sharp Dep.). Rather than follow up on this information, Prevo merely spoke with his neighbor, Dr. Tom Bannow, who is not an infectious disease specialist, and to human resource personnel, none of whom were doctors or who specialized in AIDS/HIV in the workplace. J.A. at 277-81 (Prevo Test.). Despite not having any relevant objective medical evidence regarding whether Sharp presented a direct threat to others, Prevo reassigned Sharp to the receiving department and then placed him on paid administrative leave.3
The fact that Prevo reassigned Sharp without any legal or medical basis leads to the inescapable conclusion that he did so out of fear, prejudice, and ignorance whether it was his own or that of his customers. In fact, in his deposition, Prevo testified that he mentioned to Sharp that people would be concerned that he was handling fresh produce. J.A. at 124 (Prevo Dep.). He further testified that once Sharp disclosed his HIV+ status, he “wouldn’t allow [Sharp] to go into produce_” J.A. at 125 (Prevo Dep.). He would not “allow” Sharp to work in produce despite acknowledging that he did not have any medical information for making that decision. J.A. at 125. In the absence of relevant objective medical information, Prevo’s assumed that reassigning Sharp was the prudent thing to do. Yet, our assumptions often find comfort in our fears, prejudices, and ignorance. In turn, our fears, prejudices, and ignorance often manifest themselves in discriminatory conduct. And it is this discriminatory conduct that the ADA was specifically designed to address. See, e.g., Arline, 480 U.S. at 284, 107 S.Ct. at 1129 (1987) (“Congress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment. Few aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness.”).
Like the Chapman amendment eventually rejected by Congress, the majority opinion fails to require an employer to obtain relevant objective medical information prior to reassigning an HIV infected food-handling employee to a non-food-handling position. In so doing, the majority allows the fear, prejudice, and ignorance that produced that amendment to fester unabated.
B. Required Medical Examination
In addition to allowing Prevo to act on fear, prejudice, and ignorance by summarily reassigning Sharp, the majority reinforces this discriminatory conduct by allowing Pre-vo’s to require Sharp to submit to a medical examination in order to determine whether he poses a direct threat to others. A “direct threat” is defined as a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3); see also 29 C.F.R. § 1630.2(r) (1997). The majority correctly notes that “[e]ven if an employee is a direct threat, as long as a reasonable accommodation can be made to eliminate that threat, the employee may remain employed.” Maj. slip op. at 1095 (citing id.).
According to the EEOC’s regulations:
The determination that an individual poses a ‘direct threat’ shall be based on an indi*1102vidualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.
29 C.F.R. § 1630.2(r) (1997). In making this individual assessment, an employer must consider the following four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Id.
According to the majority, Prevo’s could require Sharp to submit to a medical examination in order to make an individualized assessment in considering these four factors. Yet there is simply no need for a medical examination in order to consider these factors because ample objective medical evidence exists showing that he does not pose a direct threat. See, e.g., Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1090 (10th Cir.1997) (explaining that “29 C.F.R. § 1630.2(r) does not require 'an independent medical examination when the available objective evidence is clear. It uses the conjunctive ‘and/or’ between medical knowledge and objective evidence.”).
Dr. MacArthur, EEOC’s infectious disease expert, testified in his deposition that once infected with HIV, a person remains infected forever. J.A. at 150-51 (MacArthur Dep.). He further testified that the disease is ultimately fatal. J.A. at 157 (MacArthur Dep.). Thus, the only issues left to resolve under the four-factor test are the likelihood that the potential harm will occur and the imminence of the potential harm. The answers to these questions are context-specific; one would need to consider the environment in which the infected employee works in order to evaluate these factors.
' No one disputes that Sharp works in an environment where there are cuts, scrapes, and bleeding. Yet, according to Dr. Baum-gartner, the expert of Prevo’s, “under ordinary circumstances, a human immunodefici-eney virus (HIV) infected individual working in a food service area does not pose any threat, of transmission of infection and needs no restriction in employment.” J.A. at 194 (Letter from Dr. Baumgartner to Lubben, attorney for Prevo’s, of 5/9/96, at 1). Granted, “it would be inadvisable for bleeding to occur as a regular part of the job,” but “[h]ad medical evaluation been pursued, it is quite likely that the recommendation would have been for no restrictions on the job.” Id. Moreover, Dr. MacArthur, in his deposition, testified that the odds of Sharp infecting a fellow produce worker were one in ten-million under normal circumstances. J.A. at 159. (MacArthur Dep.).4 By comparison, he testified that infection of a patient by an HIV4- surgeon with her hands in the body cavity of the patient would be anywhere from one in forty-thousand to one in four-hundred-thousand depending on the study. J.A. at 158.
The expert testimony suggests that the risk of infection to Sharp’s co-workers is not significant. As a result, he does not present a direct threat to any of them. Yet, even if he did present a direct threat, he is still a “qualified worker” if he can be reasonably accommodated. 42 U.S.C. § 12111(3); 29 C.F.R. § 1630.2(r) (1997). There is no dispute that providing Sharp with steel gloves and his own separate knives were reasonable accommodations that would further reduce the likelihood and imminence of transmission. Maj. slip op. at 1093 & n. 6.
All of this expert testimony emphasizes the point that likelihood and imminence of infection could be determined without resort to a medical examination of Sharp. The majority focuses on parts of the testimony where both experts suggest that a medical examination would have been beneficial primarily to determine Sharp’s intellect and personal hygiene habits. However, neither Dan Prevo nor anyone else had observed or reported any aberrations in Sharp’s intellect or personal hygiene habits. Thus, Prevo’s had no foundation for believing that a personalized medical examination of Sharp was necessary *1103to conduct the direct-threat analysis. From the foregoing analysis, I conclude that it is not.
III. Job-Related/Consistent with Business Necessity
In addition to requiring Sharp to submit to a medical examination for the direct threat analysis, the majority also holds that a medical examination was job-related and consistent with business necessity. Maj. slip op. at 1093. However, the ADA provides:
A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
42 U.S.C. § 12112(d)(4)(A). See also 29 C.F.R. §§ 1630.13(b) and 1630.14(c). Job-related and consistent with business necessity requires that the medical test serve a “legitimate business purpose.” S.Rep. No. 101-116, at 39 (1989); H.R.Rep. No. 101-485(11), at 75 (1990), U.S. Code Cong. & Admin. News at 303,357; H.R.Rep. No. 101-485(111), at 44 (1990), U.S. Code Cong. & Admin. News at 445, 466; 29 C.F.R. pt. 1630, App. §§ 1630.13(b), 1630.14(c) (1997) (Interpretive Guidelines).5 According to the majority, “Prevo’s legitimate business purpose and business necessity was to protect the health of Sharp, its other employees and the general public from HIV infection. Because of the frequency of bleeding in the produce area, Prevo’s needed to verify Sharp’s medical condition, determine whether he had other conditions associated with HIV, and determine whether he was aware of and able to follow safety procedures to reduce or eliminate any risk of infection.” Maj. slip op. at 1094.
The recognized legitimate business purposes are as follows: (1) when an employee is having difficulty performing his or her job effectively; (2) when an employee becomes disabled on the job or wishes to return to work after suffering an illness; (3) if an employee requests an accommodation; and (4) if medical examination, screening, and monitoring is required by other laws. See ADA Technical Assistance Manual, Chap. VI, 12-14 (1992), cited in Dist. Ct. Op. at 5 (8/27/96), J.A. at 24. See also S.Rep. No. 101-116, at 39; H.R.Rep. No. 101-485(11), at 75 and (III), at 44; Yin v. California, 95 F.3d 864, 868 (9th Cir.1996) (requiring medical examination where employee had difficulty performing job); Rodriguez v. Loctite Puerto Rico, Inc., 967 F.Supp. 653, 661-62 (D.P.R. 1997) (requiring medical examination where employee cited medical condition in requesting a two-month leave of absence); Judice v. Hospital Serv. Dist. No. 1, 919 F.Supp. 978 (E.D.La.1996) (requiring medical evaluation for doctor seeking reinstatement of hospital staff privileges after suffering from alcoholism). See generally Chai R. Feldblum, Medical Examinations and Inquiries under the Americans With Disabilities Act: A View from the Inside, 64 Temple L.Rev. 521 (1991) (discussing circumstances under which employers may require medical examinations of current employees).
None of the foregoing situations apply to Sharp. There is no dispute that he performed satisfactorily as a produce clerk. J.A. at 142 (Store Manager Mike Rodes Dep.). Furthermore, Sharp was not seeking to return to work after suffering illness or injury, nor was he claiming to have become injured on the job. Moreover, at no time did Sharp ever seek an accommodation.6 Final*1104ly, neither Prevo’s nor the majority cite to any other law that would require a medical examination in this case. Accordingly, Pre-vo’s had no legitimate business purpose for requiring a medical examination of Sharp.
The majority holds that the legitimate business purpose of Prevo’s was to protect the health of Sharp and others because of the frequency of bleeding in the produce area. This holding perpetuates discrimination by allowing Prevo’s to single out Sharp. Why single out Sharp in this setting? If everyone cutting produce suffers from cuts, scrapes, and bleeding, and if everyone shares equipment and fails to follow sanitary policies, then everyone is at risk for all blood-borne pathogens. Sharp is just as much at risk of getting a blood-borne infection such as hepatitis from one of his co-workers who has hepatitis as his co-workers are of getting infected by him. In fact, Dr. Baumgartner, the infectious disease expert of Prevo’s, explained that
[I]f it was a common practice in this work setting for tools to become bloodied by employees and then if there was a risk that the tool would subsequently be used by another employee with a regular probability that the second employee would cut them self [sic] with the bloody tool, there was a risk of transmission of blood borne pathogens (including HIV). This issue transcended HIV however and placed any employee at risk for transmission of agents such as Hepatitis B and C or other agents. I believe that that practice should have been stopped on general infection control grounds rather than due to anything unique to HIV.
J.A. at 195 (Letter from Dr. Baumgartner to attorney Lubben of 5/9/96, at 2) (emphasis added).
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 Pre-vo’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 to individuals with disabilities.”) (emphasis added).
CONCLUSION
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 “[t]he 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.
. 42 U.S.C. § 12113(d) reads as follows:
(d) List of infectious and communicable diseases
(1) In general
The Secretary of Health and Human Services, not later than 6 months after July 26, 1990, shall—
(A) review all infectious and communicable diseases which may be transmitted through handling the food supply;
(B) publish a list of infectious and communicable diseases which are transmitted through handling the food supply;
(C) publish the methods by which such diseases are transmitted; and
(D) widely disseminate such information regarding the list of diseases and their modes of transmissibility to the general public.
Such list shall be updated annually.
42 U.S.C. § 12113(d)(2) then provides that when an individual has an infectious or communicable disease on the list, "which cannot be eliminated by reasonable accommodation, a covered entity may refuse to assign or continue to assign such individual to a job involving food handling.”
. Below is the most current list (published by the CDC as part of the Department of Health and Human Services on September 22, 1997) of diseases transmitted through the food supply:
I. Pathogens Often Transmitted by Food Contaminated by Infected Persons Who Handle Food, and Modes of Transmission of Such Pathogens
The contamination of raw ingredients from infected food-producing animals and cross-contamination during processing are more prevalent causes of foodbome disease than is contamination of foods by persons with infectious or contagious diseases. However, some pathogens are frequently transmitted by food contaminated by infected persons. The presence of any one of the following signs or symptoms in persons who handle food may indicate infection by a pathogen *1100that could be transmitted to others through handling the food supply: diarrhea, vomiting, open skin sores, boils, fever, dark urine, or jaundice. The failure of food-handlers to wash hands (in situations such as after using the toilet, handling raw meat, cleaning spills, or carrying garbage, for example), wear clean gloves, or use clean utensils is responsible for the foodbome transmission of these pathogens. Non-foodbome routes of transmission, such as from one person to another, are also major contributors in the spread of these pathogens. Pathogens that can cause diseases after an infected person handles food are the following:
Hepatitis A virus
Norwalk and Norwalk-like viruses
Salmonella typhi
Shigella species
Staphylococcus aureus
Streptococcus pyogenes
II. Pathogens Occasionally Transmitted by Food Contaminated by Infected Persons Who Handle Food, but Usually Transmitted by Contamination at the Source or in Food Processing or by Non-Foodborne Routes
Other pathogens are occasionally transmitted by infected persons who handle food, but usually cause disease when food is intrinsically contaminated or cross-contaminated during processing or preparation. Bacterial pathogens in this category often require a period of temperature abuse to permit their multiplication to an infectious dose before they will cause disease in consumers. Preventing food contact by persons who have an acute diarrheal illness will decrease the risk of transmitting the following pathogens:
Campylobacter jejuni
Entamoeba histolytica
Enlerohemorrhagic Escherichia coli
Enterotoxigenic Escherichia coli
Giardia lamblia
Nontyphoidal Salmonella
Rotavirus
Taenia solium
Vibrio cholerae 01
Yersinia enterocolitica
See 62 Fed.Reg. 49518 (Sept. 22, 1997).
. The majority states that requiring Prevo’s to obtain information before reassigning Sharp “would impose upon Prevo's a duty to become an expert in the field of HIV transmission and control.” Maj. slip op. at 1097. On the contrary, such a requirement is designed to ensure that employers are acting on fact rather than fear, information rather than ignorance, and medical evidence rather than mythology. As the Supreme Court explained, ”[t]he Act is carefully structured to replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments.” School Bd. of Nassau County v. Arline, 480 U.S. 273, 284-85, 107 S.Ct. 1123, 1129, 94 L.Ed.2d 307 (1987) (discussing § 504 of the Rehabilitation Act, the precursor to the ADA). After all, if Prevo wanted to expand his store, he would first call an architect, contractor, and engineer before allowing the construction crew to begin working. Yet, making those telephone calls would not make him an expert in architecture, construction, or engineering. Instead, those telephone calls would provide him with information to make rational rather than rash decisions.
. He posited the fanciful hypothetical that if one of Sharp’s co-workers had a fresh cut on his hand, held the wound wide open, and Sharp bled directly into it, then the likelihood of transmission would increase to one in three-thousand. J.A. at 160.
. As the majority correctly notes, in Gilday v. Mecosta County, 124 F.3d 760, 766 (6th Cir. 1997) (Kennedy, J., concurring in part, dissenting in part), one judge wrote that "[t]he appendix constitutes a set of interpretative, rather than legislative, rules and is, therefore, not binding law. Nevertheless, such administrative interpretations of the ADA by the enforcing agency, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Id. (citations omitted) (quotations omitted). See also id. at 763 n. 2 (discussing weight to be given to EEOC’s interpretive guidelines and noting that to the extent that interpretive guidelines interpret EEOC regulations they are controlling regarding the regulations’ meaning, unless plainly wrong or inconsistent) (Moore, J.).
. It is undisputed that Sharp informed his employer of his HIV + status only in order to give Prevo’s advance notice that he would be speaking about HIV at the local high school.