dissenting:
In making its decision not to hire Mr. Echazabal, Chevron relied on the recommendation of his own treating physician who agreed with Chevron’s examining doctors that the job in question would jeopardize the applicant’s health. Mr. Echaza-bal now attacks not only the opinion of Chevron’s doctors, but also the medical opinion of the doctor he chose to treat him. His “ammunition?” Two competing academic opinions never communicated to Chevron in connection with its hiring decision and not produced until the filing of his lawsuit. On this record, I conclude that this past-posted evidence cannot create a genuine issue of material fact as to the equity of Chevron’s good faith decision. At best, this lawsuit is a misguided attempt by plaintiffs lawyers belatedly to put Chevron’s and his own doctors’ opin*1036ions on trial, an adventure which is not germane on this set of facts to whether Chevron’s decision when it was made comported with what the law required. As such, this case stands for the proposition that securing the opinion of a health-compromised job applicant’s own treating doctor is not enough to protect an employer from costly litigation, litigation that comes complete with a prayer for punitive damages.
This case is important in the scheme of things, however, not so much because of its mistaken outcome, but for the bodeful implications it has for those to whom this law applies. My colleagues’ opinion dismissing the opinions of the doctors upon whom Chevron relied will have a significant pernicious impact on all employers in this Circuit who are doing their best in good faith to comply with the law. Moreover, it will encourage lawyers to choose lawsuits for their clients rather than employment. This counter-productive state of affairs is well described in the joint amicus brief filed with us by the American College of Occupational and Environmental' Medicine, the Western Occupational and Environmental Medical Association, and the California Society of Industrial Medicine and Surgery, a brief that demonstrates what is at stake:
... An employer is not required, on pain of being held liable for violating the ADA, to second-guess the facially reasonable opinions of competent physicians or to conduct its own full trial of the relevant medical issues each time it must assess whether an employee is qualified or poses a “direct threat.”
... The legal standard urged in this case by plaintiff and the EEOC will neither prevent discrimination, nor protect worker health. Instead, it will place employers in the untenable position of making medical judgments they are not qualified to make, on pain of huge potential liability should a court later conclude (based on after-the-fact testimony) that the employer’s judgment was not “accurate.” Nothing in the Americans with Disabilities Act supports this result. Reliance on facially reasonable opinions rendered by trained physicians does not become unlawful discrimination merely because allegedly conflicting opinions are later produced.
* * *
Permitting an employer to rely on contemporaneously available and facially reasonable medical opinions does not leave employees powerless against mistaken diagnoses. If the diagnosis is based on erroneous or incomplete information, the employee remains free to present the correct information to the physicians who examined him. The employee is also free to contemporaneously seek the opinions of other specialists and to provide that information to the employer, thus provoking a dialogue with the employer and the original examining physicians that might result in agreement that no significant risk of harm exists. The applicable rule should be drawn in such a way that gives the employee the incentive to seek out and present relevant medical evidence at the time the decision is made — not months or years after-the-fact in burdensome and expensive litigation.
Similarly, if the relevant medical evidence becomes available only after the decision is made, the employee is free to present it to the employer at that time. Should the employer unreasonably persist in an adverse employment decision after receiving information that would make clear to a lay person that the *1037earlier diagnoses were incorrect, liability under the ADA might be proper. But such liability would be for the later adverse action, not for the original decision.
Hence, I respectfully dissent.
I
Chevron first discovered Mr. Echaza-bal’s condition in 1992, while he was working at its refinery as an independent contractor. Dr. Philip Baily, Chevron’s in-house physician, made this discovery while examining the appellant in connection with an earlier job application and contingent offer of employment in its Coker/Sulfur Acid Division, known as the “coker unit.” Dr. Baily had studied toxicology at the University of Texas and was Board Certified in preventative occupational medicine. On the basis of a standard comprehensive medical examination of Mr. Echazabal, including lab tests, Dr. Baily found that Mr. Echazabal’s liver function was “grossly abnormal” and concluded that he should not be exposed to liver toxic chemicals or alcohol. After Dr. Baily’s examination, Mr. Echazabal consulted at Chevron’s suggestion with his own doctors who confirmed the diagnosis, and he began long-term treatment in 1993 for his condition in the GI Hepatology Department of Healthcare Partners Medical Group.
Dr. Baily eventually opined that:
A healthy individual can be expected to withstand this exposure with no significant health risk. But given Mr. Echa-zabal’s history of a long term fiver problem, his diagnosis of chronic active Hepatitis C, and significantly elevated fiver enzymes over a period of years, he had a reduced fiver function as demonstrated by lab test results, [so] he would be far more at risk than a person who had normal fiver function and was performing the duties of a plant helper.... [Fjurther exposure to hepatotoxic chemicals and solvents would further damage his already reduced fiver capacity and seriously endanger his health. Small exposures over a long period of time would pose a health hazard for him. Also, a single event large exposure (for example, as a result of a ruptured pipe, a relief valve popping and venting, a fire, explosion or other emergency situation) could by itself significantly injury him and potentially cause his death.
Dr. Baily’s findings and conclusions were recorded in Chevron’s records. Based on Mr. Echazabal’s medical unsuitability for the job, Chevron rescinded its offer.
II
A.
Some years later, on December 28, 1995, Chevron again offered Mr. Echazabal a job in the coker unit, in its El Segundo refinery for which he had again applied, but, as in 1992, the offer was contingent on the results of a standard pre-employment physical examination. The offer was apparently made without knowledge of Mr. Echazabal’s medical history. Enter Dr. Kenneth McGill, Dr. Baily’s successor. Dr. McGill had thirty years of experience as a physician. Dr. McGill had worked at the refinery clinic for ten years and was personally familiar with the conditions and demands of the work at issue. On the basis of a thorough medical examination, a review of blood tests, and a discussion with Mr. Echazabal’s own doctor, Dr. McGill determined — as had Dr. Bailey — that the chemicals and solvents to which Mr. Echa-zabal would be exposed at the refinery would further aggravate his reduced fiver capacity and seriously endanger his health and his fife.
*1038Dr. McGill then discussed his findings and conclusions with Dr. T.L. Bridge, Chevron’s Medical Director in San Francisco. Dr. Bridge, whose specialty was occupational medicine, agreed with Dr. McGill’s and Dr. Baily’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 focused conclusion. Mr. Echazabal did not offer any evidence or information to the contrary.
The record leaves no doubt that Dr. McGill’s evaluation constituted an individualized assessment of Mr. Echazabal’s medical suitability for the job. Dr. McGill’s assessment included (1) a review of Mr. Echazabal’s medical charts documenting examinations and information received by Chevron between 1992 and 1996, including Dr. Baily’s findings; (2) an updated medical history of the applicant as of 1996; (3) numerous blood tests administered over many years showing abnormal results indicating liver cell damage; (4) a review of a current liver function test; and most importantly, (5) Chevron’s job summary and physical/environmental demands specifications for the particular job sought, as well as Dr. McGill’s own knowledge of the position.
B.
But, here is the clincher: in addition to the five sources of information listed above, Dr. McGill contacted also Mr. Echa-zabal’s own treating physician, Dr. Zelman Weingarten, at Healthcare Partners Medical Group, where Mr. Echazabal had been a hepatitis patient for almost three years after Dr. Baily discovered his illness. Dr. Weingarten, who had no connection to Chevron, advised against this job because of its risks to his patient’s health, as the following exchange of information demonstrates.
At their first meeting, Mr. Echazabal admits that Dr. McGill told him he needed more information from his treating doctors. Accordingly, Dr. McGill sent a letter dated January 10,1996, to the person originally identified by Mr. Echazabal as his treating physician at Healthcare Partners, Dr. Mordo Suchov. This letter requested relevant information about Mr. Echazabal, but Dr. Weingarten, who unbeknownst to Dr. McGill had taken over for Dr. Suchov, had already mailed to Chevron Corporation a “To Whom it May Concern” letter dated also January 10, 1996. Dr. McGill’s and Dr. Weingarten’s letters obviously crossed in the mail, and, when he read it, Dr. McGill believed that Dr. Weingarten’s January 10th letter, which focused on whether the disease was contagious, was not responsive to his written inquiry of the same date. Dr. McGill’s letter, which demonstrates an interest in Mr. Echaza-bal’s well being, not in whether he was contagious, reads in relevant part as follows:
January 10,1996
Dear Dr. Suchov:
I’ve been informed that an applicant for employment, Mario Echazabal, has been under your care for abnormal hepatic function and continuing treatment relative to hepatitis C.
Mr. Echazabal is re-applying for work at Chevron after a three year interim of treatment. This clinic had done an extensive work-up, including communications with the treating doctors at that time. In order to consider his present application we will need recent results of his current liver function tests and a short letter from yourself giving the present diagnosis, condition and prognosis.
The job Mr. Echazabal has applied for may entail exposure to hepatotoxic hy-*1039droearbons, thus we would appreciate your opinion as to whether this exposure would be a risk to his present liver condition.
Enclosed please find authorization for release of medical information signed by the applicant. A self-addressed, stamped envelope is enclosed for your convenience in replying. Any charges for this information would remain the responsibility of the applicant. Thank you for your assistance and cooperation in this matter.
Thus, when he reviewed Dr. Weingar-ten’s January 10, 1996, non-responsive letter that clearly had been written before Dr. Weingarten received this inquiry, Dr. McGill personally called Dr. Weingarten and queried him about the dispositive issue: could Mr. Echazabal safely work around hepatotoxic hydrocarbons. Dr. Weingarten’s response was that Mr. Echa-zabal “shouldn’t be exposed to these hydrocarbons.” I find no factual challenge to this evidence in the record.
Here are relevant excerpts from Dr. McGill’s deposition:
By Mr. Minsky
Q Correct me if I’m wrong, but I assume the letter between Dr. Weingarten and you passed in the mail; right?
A That’s sure what happened.
Q So you get Dr. Weingarten’s letter of January 10. When do you call Dr. Weingarten?
A Can’t give you an exact date.
Q You don’t recall?
A No. I don’t recall when exactly.
Q Well, do you recall — do you have anything to refresh your recollection as to when?
A Let me elaborate on the sequence of these letters and contact. I think that would be better.
Q Before you do that, let me clarify. Did you actually speak with Mr. Weingarten, or did you speak with somebody from his office to get some lab results? Let me see if I can help you here.
A Well, I can answer it.
Q Okay.
A Both. I don’t know if the lab results were his office or from the laboratory.
Q Okay. Go ahead, and tell me the sequence.
A Yes. As you pointed out, the two letters had crossed. Therefore, Dr. Weingarten wasn’t replying to my letter. In fact, you know, it’s a “To Whom it May Concern” letter. And therefore, I wanted to make sure that Dr. Weingarten either received the letter, and possibly forwarded it on to Mr. Suchov.
So I don’t recall exactly the chain of events. But we determined that Suchov was no longer caring for Mr. Echazabal, and that Dr. Wein-garten was the primary doctor at this time. And as the time was going by, I don’t know when we got this January 10th letter, there’s no date stamp on it, I called, and you know, got ahold of Dr. Weingarten briefly on the phone to try to straighten out the matter of whether he’d gotten my letter or not. And at the time I spoke with him, my impression was that he hadn’t got the letter forwarded to him, but that he would get it all right.
Q Go ahead.
*1040A And so I had verbally either read the paragraph in my letter or paraphrased it asking him to respond to our concern. Let me scratch that, and put it a different way.
I wanted to make sure that he understood that our concern was the exposure to hepatotoxic hydrocarbons, and not the contagion issue which he had responded to in his letter here. And so I was able to get across to Dr. Weingarten that that was one of my interests, and he replied, paraphrased again, but pretty well as he replied in the subsequent letter [of February 28, 1996] that if that was the case then he shouldn’t be exposed to these hydrocarbons. And I, you know, expected the forthcoming letter to follow-up my telephone conversation. Now, I can’t tell you the time sequence of that.
Q So you have no—
A It’s in between there somewhere. It’s just that, you know, I realized that this had crossed, and that this letter wasn’t addressing our concern at Chevron about the exposure. And I wanted to make sure that Dr. Weingarten knew that that’s what I wanted him to know. And would he please reply to that in addition to what he had in this January 10th letter. That’s my best recollection of what occurred, and the sequence of how it happened.
The “forthcoming letter” from Dr. Wein-garten referred to by Dr. McGill with respect to Dr. Weingarten’s opinion did eventually arrive in Dr. McGill’s office. That this letter was addressed to Dr. McGill, not just Chevron Corporation, demonstrates that it was a confirmation of their earlier telephonic conversation as related by Dr. McGill. The letter reads as follows:
February 28,1996
Kenneth McGil [sic], M.D.
Chevron USA Products Company
El Segundo Refinery
324 West El Segundo Blvd.
El Segundo, CA 90245
Attn: Medical Clinic
Re: Mario Echazabal
S.S. # XXX-XX-XXXX
M.R. # 1-H102214
Dear Dr. McGill:
In response to your letter of 1/10/96, I would like first to refer to the letter we sent you on 1/10/96, which it appears has not reached your desk (I am including a copy of that letter for your evaluation). Mr. Echazabal has been treated here in the past for chronic active hepatitis secondary to hepatitis C. Although he received extended periods of Interferon therapy, the problem was not cleared. During the last physical examination, we found the patient to be in good general health without any changes and no evidence of liver failure. I had recommended at the time for him to be allowed to return to work and to his usual activities, and I recommended some general measures. In your letter, it is mentioned that Mr. Echazabal has applied for return of his job and it mentioned that “this may entail exposure to hepatotoxic hydrocarbons. ” This, of course, is recommended not to be the case.
If we can be of any assistance, please do not hesitate to contact us.
Sincerely,
[signed]
Zelman Weingarten, M.D.
*1041C.
Chevron’s Personnel Director, William Saner, who is not a medical doctor, made the final decision for Chevron to withdraw the contingent offer of employment. He so notified Mr. Echazabal on February 6, 1996. Mr. Saner made this decision 10043 after reviewing the record and consultation with Dr. McGill. The reason for his decision was the risk of the job. To quote Mr. Saner, “The risks would be exposure to hydrocarbons, assorted chemicals, solvents, toxins; and that based on the medical evaluation of the liver, that he may not be able to cleanse his body with the existing capacity of his liver.” I note here that the chemical agents referred to by Mr. Saner were the agents Mr. Echazabal himself reported to the doctors on his medical history questionnaire as the chemicals with which he would come into contact in this job.
More importantly, Mr. Saner made his decision as noted on the basis of Dr. McGill’s recommendation which relied in large part on Dr. Weingarten’s opinion. I quote Mr. Saner from his uncontradicted deposition of September 10,1997:
By Mr. Turner:
Q During this January and February 1996 time period, at some point in time did you have an understanding that Mr. Echaza-bal’s physician had in fact recommended he not be exposed to solvents, toxins and the like?
A Dr. McGill instructed or told me that he had had that conversation and had that information and had that directed from his doctor; yes.
Q Did that impact, in any way, the decision that you made to withdraw the job offer?
A Very much so.
Here I note that according to Dr. Wein-garten, Mr. Echazabal had been “followed in the GI Hepatology Department for several years with a history of chronic active hepatitis, secondary to Hepatitis C. He has been treated for extended periods with Interferon without clearance of the problem.” As far as I am concerned, these salient facts when added to the rest of the evidence renders as a matter of law Chevron’s medical judgment not to hire Mr. Echazabal both reasonable and based on the best available objective evidence.
Ill
A.
Years later, in connection with this lawsuit, Mr. Echazabal has produced the conflicting opinions of two experts, Doctors Fedoruk and Gitnick, no doubt qualified generally to speak on the issue of liver conditions and their relation to exposure to toxic chemicals. Given this detailed and comprehensive factual record, however, and Chevron’s rebanee at the time on Mr. Echazabal’s own treating physician, as well as their own doctors, I conclude that as impressive as these experts’ credentials might be, their opinions are not relevant to the bona fides and quality of Chevron’s decision not to hire Mr. Echazabal.
To begin with, in contrast to Dr. Weingarten, neither Dr. Fedoruk nor Dr. Gitnick was Mr. Echazabal’s treating physician. Moreover, I learn from their respective depositions that neither Dr. Fedoruk nor Dr. Gitnick medically examined this appellant. Dr. Fedoruk only “met and spoke” with him, and Dr. Git-nick reviewed only his deposition. As Judge Reinhardt reminded us in a different context in Ghokassian v. Shalala, 41 F.3d 1300 (9th Cir.1994), “We have accorded deference to treating physicians precisely because they are the doctors *1042with ‘greater opportunity to observe and know the patient.’ ” Id. at 1303 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983) (internal - quotation omitted)). See also Black & Decker Disability Plan v. Nord, — U.S. -, -, 123 S.Ct. 1965, 1971, 155 L.Ed.2d 1034 (2003) (“[I]t may be true that treating physicians, as a rule ‘ha[ve] a greater opportunity to know and observe the patient as an individual.’ ”)1
B.
Furthermore, Mr. Echazabal’s experts surfaced for the first time in opposition to Chevron’s motion for summary judgment. Their information was never brought to Chevron’s attention in connection with its decision to withdraw the job offer or in an attempt to convince it to reconsider, and the experts never talked to Doctors Baily or McGill. The only input Mr. Echazabal offered during the decision making process was the opinion of his treating physician, and he agreed with Dr. McGill. It is nothing short of astonishing to permit the opinions of Mr. Echazabal’s Johnny-Come-Lately experts to shed light on the bona fides of Chevron’s decision.
All Dr. Gitnick and Dr. Fedoruk demonstrate is a common lawsuit-induced dispute between doctors. What a surprise. What is a surprise is that Mr. Echazabal’s litigation doctors disagree with his treating doctors. To add to the inevitable battle of experts, we have Dr. Brian Tang. Dr. Tang, a certified medical specialist in occupational medicine trained in toxicology and educated at John Hopkins School of Medicine, came also to the conclusion that Mr. Echazabal has a condition that will be “worsened by ... exposure[to hepatotox-ins], causing probable death.” He did so in consultation with his colleague Dr. Socol after Mr. Echazabal was sent in 1996 to their clinic for a hands-on medical evaluation. He and Dr. Socol agreed that Mr. Echazabal should not be exposed to chemicals in a refinery, and Dr. Tang consulted scholarly journals in forming his opinion. This places at least six doctors in support of Chevron’s decision.
Dr. Tang, who taught occupational preventative medicine at the University of Southern California School of Medicine in Los Angeles was as adamant as University of California employed Doctors Fedoruk and Gitnick:
By Mr. Minsky
Q Is it your opinion that no one can work at a refinery if somebody has elevated enzyme levels?
A It’s my opinion that a person should not work in a refinery if he is going to be exposed to hepatotoxins, but he can work in a refinery if he is not going to be exposed to hepato-toxies.
Q Irrespective of their enzyme level?
A That’s correct. If his fiver enzymes are elevated, but he’s not going to be exposed to hepatotoxins, then he should be able to work in a refinery. But, if he is going to be exposed to hepatotoxins, and has elevated fiver enzymes, he should not be working there.
Q Is your belief that Mr. Echazabal risks injury or death, true for anybody that has an enzyme level of 177?
*1043A Yes.
Q Are you able to tell me whether you think it would be a substantial risk of injury to him?
A Any risk is substantial when it involves your health and your life is on the line. This is a case where you make one mistake and he’s history and I did not want that to happen to this patient.
Current scientific literature on this subject amply supports Chevron’s doctors aijd Mr. Echazabal’s treating physician. Both the 1992 Second Edition and the 1998 Third Edition of the textbook Environmental and Occupational Medicine consistently describe exposure in the workplace to hepatotoxins as a cause of serious damage to the liver. This book notes also that frequently the dangers do not manifest themselves in symptoms until “the end.” Here are some relevant excerpts from the Third Edition:
Toxic Liver Disorders
The liver’s central role in total health status makes it vulnerable to a wide variety of environmental and occupational hepatotoxic results.
People with acute toxic liver disorders frequently have nonspecific chemical manifestations and those suffering from chronic liver injury usually are asymptomatic until the disease progresses to its end stage. Sometimes toxic liver disorders are inferred in certain environmental settings.... Simultaneous exposure of agents such as viral hepatitis and/or alcohol and drug abuse, may confound the fiver disorder caused by the specific occupational or environmental hepatotoxic agent.
Chemically Induced Liver Disorder
Human liver disorders caused by chemicals have been recognized for more than a century.
Hepatotoxic chemicals are encountered in a variety of occupations, including painting, textile, and dye manufacturing. More than 100 chemicals have been found to be toxic to the liver in occupationally exposed workers.
... The synthetic hepatotoxic chemicals include therapeutic drugs, pesticides, metals, ethanol, and industrial chemicals. Among the industrial chemicals are classes of agents, such as aromatic hydrocarbons, halogenated hydrocarbons, chlorinated aromatic compounds, and nitro compounds.
Chemically induced liver disorders can be acute, subacute, and chronic hepatic injuries based on their clinical presentations, and specific hepatotoxins may induce both acute and chronic lesions.
William N. Rom, Environmental & OCCUpational Medicine 831, 834 (3d ed.1998)
C.
The record reveals without dispute that if hired to work in the coker unit, Mr. Echazabal will be exposed to hepatotoxins. Ron DiPadua, a Shift Supervisor in the Coker/Sulfur Acid Division where Mr. Echazabal would work in the job at issue described in his deposition a workplace rife with caustic chemicals, stating also that “[tjhere is also a risk of a major event, e.g., major leak, fire or explosion. These *1044occur only very infrequently but can result in a plant helper in the coker unit having major exposure to the chemicals and products used and produced in these operations.” Mr. DiPadua summed up his information as follows:
... There is no way to perform the functions of a plant helper without being exposed to this environment including hydrocarbons, chemicals and solvents. Exposures to some of these substances arises from plant helpers using them directly. Additional exposure results from being in a work area when others are using them. I am informed and believe, based on a review of the Declaration of Kenneth McGill, M.D., which is being filed with the court together with this declaration, that a healthy individual can be expected to withstand this exposure with no significant health risk. But a person with a long term liver problem, a diagnosis of chronic active Hepatitis C, and reduced liver function would be far more at risk than a person who had normal liver function and was performing the duties of a plant helper.
Is Mr. DiPadua’s statement about a “major event” or an “explosion” relevant? Yes. I quote Dr. Gitnick: “I am also aware that while working at the refinery, and specifically at the coker unit, Mr. Echaza-bal was repeatedly exposed to leaks and on at least one occasion an explosion.” Mr. Echazabal confirmed this event in his deposition, identifying the explosion as having been in one of the coke drums. The explosion was “bad” and “sent people to the hospital.”
D.
The majority’s logic is inconsistent at best. On one hand, Dr. Weingarten’s treating physician opinion evidence is of little moment, but Doctors Fedoruk’s and Gitnick’s non-treating opinions, of which Chevron was not aware and which were offered long after Chevron made its decision, have substantial value. Based on common sense, as well as our required focus on “the best available objective evidence,” I see it the other way around: Weingarten’s individualized evidence summing up his patient’s long-term treatment in his practice’s GI Hepatology Department, in conjunction with Dr. Baily’s, Dr. McGill’s, and Dr. Bridge’s opinions, is dis-positive: Chevron made its objective decision after appropriately and thoroughly considering all the relevant factors.
Seen for what it is, Mr. Echazabal’s argument is for a heightened standard that would have required Chevron’s doctors to search out an outside expert to confirm their unanimous opinion. Nowhere does the law require such a step so long as what Chevron’s doctors did was objectively reasonable under the circumstances. In any event, however, Chevron’s doctors — not lay persons — did exactly what Mr. Echaza-bal now calls for: they called Mr. Echaza-bal’s own treating doctor who confirmed their conclusions. If Dr. Weingarten — and the GI Hepatology Department of Heath-Care Partners — was good enough as a long-term treating physician for Mr. Echa-zabal, why not for Chevron? What could be better than the recommendation of his own treating doctor that he not have the job? Notable here is the fact that Dr. Suchov and Dr. Weingarten had been treating him since 1993. Mr. Echazabal had gone to them when he had been told to seek out a liver specialist for treatment. On this record, ending the process with Dr. Bridge did not render it defective or unreasonable.
IY
The majority opinion suffers from another factual error. The opinion claims that “Chevron’s doctors were unfamiliar with *1045the risks of Echazabal’s position.” The opinion suggests also that Chevron’s doctors were unaware of the types and concentrations of toxins to which a worker in the coker unit would be exposed. These assertions are flatly misleading. I quote from Dr. McGill’s declaration dated August 25, 1997, which details his precise knowledge of the chemical exposure related to this job:
The refinery creates and maintains job summaries with respect to every position at the El Segundo Refinery. These include descriptions of what employees need to be able to do in particular jobs and, where appropriate, what environmental conditions they will encounter. I knew Mr. Echazabal was applying for a position to become a coker plant helper so from our manual I obtained the summaries regarding that position. A true and accurate copy of the applicable Job Summary (Form GO-400) is attached as Exhibit 16. A true and accurate copy of Chevron’s Physical/Environmental Demands (form GO-308-ES) is attached as Exhibit 17. These summaries are prepared in the normal course of business and are used and relied upon by the medical clinic in connection with assessing whether applicants for jobs are capable of safely performing the required functions. The information in these two summaries were consistent with my general understanding and enhanced my knowledge of the coker plant helper position and its requirements. In particular, the Physical-Environmental Demands (form GO-308-ES), which was updated on December 1,1993, addressed the issue of Airborne Contaminants & Chemicals in the work environment, listing: “Hydrocarbon Liquids & Vapors, Acid, Caustic, Refinery, Waste, Water and Sludge, Petroleum, Solvents, Oils, Greases, Chlorine, Bleach.” Given Mr. Echazabal’s medical history, his impaired liver function as evidenced by lab tests in his chart and his diagnosis of chronic active Hepatitis C, I was concerned about whether he could work in the environment at the coker unit and provide the services required of a plant helper without endangering his own health. A plant helper in the coker unit is exposed to chemicals and solvents including several that are hepatotoxic, that is, damaging to the liver. A healthy individual can be expected to withstand this exposure with no significant health risk. But given Mr. Echazabal’s history of a long term fiver problem, his diagnosis of chronic active Hepatitis C, and significantly elevated liver enzymes over a period of years, he had a reduced fiver function as demonstrated by lab test results, he would be far more at risk than a person who had normal fiver function and was performing the duties of a plant helper. My concern was that further exposure to hepatotoxic chemicals and solvents would further damage his already reduced fiver capacity and seriously endanger his health. Small exposures over a long period of time would pose a health hazard for him. Also, a single event large exposure (for example, as a result of a ruptured pipe, a relief valve popping and venting, a fire, explosion or other emergency situation) could by itself significantly injure him and potentially cause death. In short, hepatotoxic exposure to a person like Mr. Echazabal with an already impaired liver suffering from a progressive fiver disease such as chronic active Hepatitis G could be fatal. One of the fiver’s primary functions is to filter poisonous substances from the body. Given the existence of numerous potential toxic substances at the refinery, even if not specifically fiver toxic, a person with an impaired fiver would be less able to de*1046toxify such an exposure. This circumstance by itself carries the risk of serious injury or death.
y
I agree with the district court that Mr. Echazabal has no case, and I do so for three primary reasons. First, Mr. Echa-zabal is clearly not “otherwise qualified” for the work he seeks. Why? Because the job most probably will endanger his health. I do not understand how we can claim he can perform the essential functions of the position he seeks when precisely because of his disability, those functions may harm him. As a matter of law, Chevron has carried its burden of establishing a “direct threat” defense.
I would follow here the sound logic, reasoning, and policy of the Seventh Circuit in Knapp v. Northwestern University, 101 F.3d 473 (7th Cir.1996). In Knapp, the plaintiff, an outstanding basketball player on an athletic scholarship, developed a heart condition that necessitated the implantation of a cardioverter-defibril-lator in his abdomen. The purpose of this device was to restart his heart should it succumb under stress to cardiac arrhythmia or arrest. Based on these facts, Northwestern University and the Big Ten Athletic Conference declared Knapp permanently medically ineligible to play basketball, but his scholarship continued. Knapp sued Northwestern, claiming on the basis of favorable evidence from his medical experts that Northwestern’s contrary medical decision had violated section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794. “Presented with conflicting evidence, the district court found Knapp medically eligible and Northwestern in violation of the Rehabilitation Act.” Id. at 477. The district court then entered a permanent injunction on Knapp’s behalf “prohibiting Northwestern from excluding Knapp from playing on its basketball team for any reason relating to his cardiac condition.” Id. The district court said with respect to the conflicting medical evidence that its
task is to consider all the opinions and determine which are most persuasive. It is what the trial of disputes such as this will sometimes require. It might have been better to have left the choice to a panel of physicians, but Congress left it with the courts....
Id. at 484.
The Seventh Circuit disagreed:
We disagree with the district court’s legal determination that such decisions are to be made by the courts and believe instead that medial determinations of this sort are best left to team doctors and universities as long as they are made with reason and rationality and with full regard to possible and reasonable accommodations. In cases such as ours, where Northwestern has examined both Knapp and his medical records, has considered his medical history and the relation between his prior sudden cardiac death and the possibility of future occurrences, has considered the severity of the potential injury, and has rationally and reasonably reviewed consensus medical opinions or recommendations in the pertinent field — -regardless whether conflicting medical opinions exist — the university has the right to determine that an individual is not otherwise medially qualified to play without violating the Rehabilitation Act. The place, of the court in such cases is to make sure that the decision-maker has reasonably considered and relied upon sufficient evidence specific to the individual and the potential injury, not to determine on its own which evidence it believes is more persuasive.
*1047We do not believe that, in cases where medical experts disagree in their assessment of the extent of a real risk of serious harm or death, Congress intended that the courts — neutral arbiters but generally less skilled in medicine than the experts involved — should make the final medical decision. Instead, in the midst of conflicting expert testimony regarding the degree of serious risk of harm or death, the court’s place is to ensure that the exclusion or disqualification of an individual was individualized, reasonably made, and based upon competent medical evidence.
In closing, we wish to make clear that we are not saying Northwestern’s decision necessarily is the right decision. We say only that it is not an illegal one under the Rehabilitation Act. On the same facts, another team physician at another university, reviewing the same medical history, physical evaluation, and medical recommendations, might reasonably decide that Knapp met the physical qualifications for playing on an intercollegiate basketball team. Simply put, all universities need not evaluate risk the same way. What we say in this case is that if substantial evidence supports the decision-maker — here Northwestern— that decision must be respected.
Id. at 484-85.
Accordingly, the Seventh Circuit concluded as a matter of law that Knapp was not “otherwise qualified” to play basketball. Parenthetically, Chevron’s case is stronger than Northwestern’s in that Chevron consulted with Mr. Echazabal’s own long-term treating physicians who concurred in Chevron’s judgment.
Our own related case law supports my analysis. In Mantolete v. Bolger, 767 F.2d 1416, 1422 (9th Cir.1985), we said, “[I]n some cases, a job requirement that screens out qualified handicapped individuals on the basis of possible future injury is necessary.” We then said,
In applying this standard [of a reasonable probability of substantial harm], an employer must gather all relevant information regarding the applicant’s work history and medical history, and independently assess both the probability and severity of potential injury. This involves, of course, a case-by-case analysis of the applicant and the particular job.
Id. at 1423. Chevron followed this formula to the letter, capping off its inquiry with information from the best possible source — the applicant’s treating doctor.
Second, Chevron has on these facts, as I have already explained, a dispositive 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). See also Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 84-86, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002) (holding that threats to the individual are included in § 12113(b)’s “direct threat” defense).
Third, 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 as a matter of law to require an employer to place an employee in a life-threatening situation. Such a rule would require employers knowingly to endanger workers. Our law books, both state and federal, *1048overflow with statutes and rules designed by representative governments to protect workers from harm. 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. California Penal Code § 192, has been used to prosecute employers in the event of the death of an employee subjected to dangerous working conditions. Granite Const. Co. v. Superior Court, 149 Cal.App.3d 465, 197 Cal.Rptr. 3 (1983). In Arizona, an employer who fails to provide a safe workplace commits a felony. Ariz.Rev.Stat. Ann. §§ 23-403, 23-418.
CONCLUSION
At this juncture in this litigation ordeal, I vote to affirm the district court across the board. I cannot imagine what would have happened to Chevron under these circumstances had Mr. Saner hired this applicant against the recommendation of his own and Chevron’s doctors and the applicant’s condition had then deteriorated — or then again, maybe I can. I would hope that the law is not a heads-I-win, tails-you-lose game. The purpose of summary judgment is to put an early end to lawsuits not supported by facts. That should be the fate of this one. Instead, the remand is for a trial where the issue will involve conflicting medical opinions regarding hepatotoxins, or a battle of experts, rather than what it should be: whether or not Chevron unlawfully discriminated against this plaintiff.
Thus, I respectfully dissent.
. Black & Decker declined to apply to ERISA the rule adopted by the Commissioner of Social Security that accords "special weight” to a claimant's treating physician. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (2002). Here, this issue is not a question of rules or of deference, but of the facts of a case where the issue is the employer’s behavior.