dissenting:
Mario Echazabal sues over not getting a job handling liver-toxic substances, i.e., “hydrocarbon liquids and vapors, acid, caustic, refinery waste water and sludge, petroleum solvents, oils, greases, and chlorine bleach.” He was denied the job because he suffers from a chronic, uncorrectable, and life-threatening viral liver disease — Hepatitis C — that most likely will be aggravated by exposure to these hazardous materials to the extent that his life will be endangered.
Chevron first discovered Mr. Eehaza-bal’s condition in 1992 when he was examined by Dr. Philip Bailey. Dr. Bailey studied toxicology at the University of Texas and is Board Certified in preventative occupational medicine. Dr. Bailey concluded on the basis of an examination of Mr. Echazabal and lab tests that his liver function was “grossly abnormal” and that he should not be exposed to liver toxic chemicals or alcohol. Dr. Bailey’s findings and conclusions were recorded in Chevron’s records.
Some years later, on December 28,1995, Chevron offered Mr. Echazabal a job in its El Segundo refinery, but the offer was contingent on the results of a standard pre-employment physical examination. Enter Dr. Kenneth McGill, Dr. Bailey’s successor. As had Dr. Bailey, Dr. McGill worked at the refinery clinic and was familiar with the conditions and demands of the work at issue. On the basis of a thorough medical examination and a review of blood tests, Dr. McGill determined that the chemicals and solvents to which Mr. Echazabal would be exposed at the refinery would further damage his reduced liver capacity and seriously endanger his health and his life. About this concern, Dr. McGill consulted by telephone with Mr. Echazabal’s personal treating physician, Dr. Zelman Weingarten. Dr. Wein-garten reported to Dr. McGill that extended Interferon therapy had not cleared his patient’s condition, and that exposure to hepatotoxic hydrocarbons was not recommended. Then, Dr. McGill discussed his findings and conclusions 'with Dr. T.L. Bridge, Chevron’s Medical Director in San Francisco. Dr. Bridge agreed with Dr. McGill’s and Dr. Bailey’s assessments that Mr. Echazabal could not safely work as a plant helper in the coker unit at the refinery. Not a single doctor disagreed with this conclusion. Mr. Echazabal did not offer any evidence or information to the contrary. Accordingly, and because Mr. Echazabal did not pass the required physical examination for the job, the offer of employment was withdrawn.
Dr. Brian Tang, a separate medical specialist in occupational medicine subsequently hired by his immediate employer Irwin Industries, also came to the conclusion that Mr. Echazabal has a condition that will be “worsened by ... exposure [to hepatotoxins], causing probable death.” Eight laboratory tests support the doctors’ reasonable medical judgment and Chevron’s objective, individualized, and sensible decision not to give Mr. Echazabal the job. He now brings to court facially competing information, but this information was not in Chevron’s hands when they made the decision he now claims is actionable. In fact, the information did not surface until this lawsuit, rendering it suspect at best. As we held in Cook v. United States Dept. of Labor, 688 F.2d 669 (9th Cir.1982), medical evidence that surfaces after the decision has been made is of no moment in this context regarding the bona fides of the decision itself. What is at issue here is the manner in which Chevron made its decision, not whether lawyers could later find another doctor to say something else.
I agree with the district court that Mr. Echazabal has no case, and I do so for two primary reasons. First, Mr. Echazabal simply is not “otherwise qualified” for the work he seeks. Why? Because the job most probably will endanger his life. I do not understand how we can claim he can perform the essential functions of the posi*1074tion he seeks when precisely because of his disability, those functions may kill him. To ignore this reality is bizarre. The EEOC’s relevant regulation provides that “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 C.F.R. § 1630.15(b)(2).
Our law books, both state and federal, overflow with statutes and rules designed by representative governments to protect workers from harm. Long ago we rejected the idea that workers toil at their own peril in the workplace. “Paternalism” here is just an abstract out-of-place label of no analytical help. Whether paternalism or maternalism, the concept is pernicious when it is allowed to dislodge longstanding laws mandating workplace safety. That battle was fought and lost long ago in our legislatures. In many jurisdictions, it is a crime knowingly to subject workers to life-endangering conditions. California Labor Code § 6402 expressly forbids an employer from putting an employee in harms way. In Arizona, an employer who fails to provide a safe workplace commits a felony. Ariz. Rev. Stats. Annot., Labor § 24^103, § 23-418. In effect, we repeal these laws with respect to this appellant, and to other workers in similar situations. So much for OSHA. Now, our laws give less protection to workers known to be in danger than they afford to those who are not. That seems upside down and backwards. Precisely the workers who need protection can sue because they receive what they need.
Second, Chevron has a defense to this action, known as the “direct threat” defense. 42 U.S.C. § 12113(b). The EEOC’s implementing regulations, authorized by Congress, defines a “direct threat” to mean “a significant risk of substantial harm to the health or safety of the individual or others that cannot be reduced by reasonable accommodation.... ” 29 C.F.R. § 1630.2(r) (Emphasis added). The EEOC’s own Technical Assistance Manual on the employment provisions of the ADA states: “The ADA recognizes legitimate employer concerns and the requirements of other laws for health and safety in the workplace. An employer is not required to hire or retain an individual who would pose a ‘direct threat’ to health or safety.” EEOC, Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act § 4.4 (1992).
On these issues, the EEOC has rationally and humanely spoken. Under Chevron U.S.A. v. Natural Resources Defense, 467 U.S. 837, 844-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we owe deference to the EEOC’s interpretation of the Act, but we have failed to acknowledge this responsibility. Contrary to what some might believe, we do not know more about this subject than the EEOC. Following the EEOC’s guidance, Mr. Echazabal is not qualified for this work.
Chevron correctly points out that the majority’s holding leads to absurd results: a steelworker who develops vertigo can keep his job constructing high rise buildings; a power saw operator with narcolepsy or epilepsy must be allowed to operate his saw; and a person allergic to bees is entitled to be hired as a beekeeper. The possible examples of this Pickwickian ruling are endless. I doubt that Congress intended such a result when it enacted laws to protect persons with disabilities.
The ADA provides a defense to employers who can demonstrate that an accommodation constitutes an “undue hardship.” 42 U.S.C. § 12112(b)(5)(A). I believe it would be an undue hardship to require an employer to place an employee in a life-threatening situation. Such a rule would require employers knowingly to endanger workers. The legal peril involved is obvious, and a simple human to human matter, such a moral burden is unconscionable.
The idea that conflicting responsibilities under different labor laws will be solved down the long, expensive, and unpredictable litigation road by the doctrine of implied preemption seems highly pernicious in this context, and a thin reed at best. *1075Did Congress really intend to nullify state and federal workplace safety laws and render them impotent to protect workers in identifiable harms way? I doubt it. Does anti-paternalism trump basic safety concerns? This entire construct makes a house of cards look secure.
Finally, and fortunately, we have created a conflict with the Eleventh Circuit, which held that “an employer may fire a disabled employee if the disability renders the employee a ‘direct threat to his own health or safety.’ ” Moses v. American Nonwovens, Inc., 97 F.3d 446 (11th Cir.1996), cert. denied, 519 U.S. 1118, 117 S.Ct. 964, 136 L.Ed.2d 849 (1997). I say “fortunately” because this conflict will compel the Supreme Court — or Congress — to resolve this dispute — unless we do so ourselves by way of en banc review.