In first appearance before Court, Bagenstos defends right to choose dangerous work
By Emily Newburger
Assistant Professor Samuel Bagenstos '93 argued a disabilities rights case before the U.S. Supreme Court on February 27 and answered questions from what he terms "a very active bench." When he returned to campus the next day, students and colleagues had their own questions for him. How did he prepare? What were the hard moments? And how did it feel to read in a Slate magazine article that he bore a striking resemblance to Doogie Howser and looked all of 19?
Bagenstos, who is in fact all of 32, says he is thrilled to have gotten the chance, at his age or any age. Although he acknowledges being nervous before the arguments, once they started he "was in the middle of the moment and it was great." With questions coming quickly from all sides, it was intense but exhilarating, "a conversation with very smart lawyers who are very focused on something that's very important to you."
Bagenstos, whose work focuses on civil rights legislation and litigation, believes the case, Chevron USA, Inc. v. Echazabal, raises fundamental questions about rights of employees with disabilities.
The respondent, Mario Echazabal, had worked in a Chevron oil refinery for 20 years through an independent contractor. He was denied a job working directly for Chevron and eventually fired by the contractor after a physical exam revealed he had hepatitis C. Doctors said exposure to chemicals at the plant could endanger his health and possibly kill him. Echazabal sued under the Americans with Disabilities Act (ADA).
"Historically, one of the ways people with disabilities have lost out on job opportunities has been through a kind of misguided paternalism," said Bagenstos, "because the employer said, 'This won’t be safe for you.'" According to Bagenstos, the ADA leaves that decision to the individual.
Although Bagenstos would not speculate on the outcome of the case, he said the justices asked lots of tough questions of both sides and were clearly working through hard issues. Some of the hardest moments for him during the arguments involved questioning about "an employee who is absolutely, certainly going to die almost immediately if he works." Some of the justices were quite focused on "whether it was really the case that an employer can't exclude that person."
Despite the exhilaration of the experience, Bagenstos seems glad to be back to the "ordinary grind of the law professor," back to his office in Areeda Hall, surrounded by piles of books and papers and images of his children (he and his wife, Assistant Professor Margo Schlanger, have twins). By serving as one of the attorneys on the case, he thinks he's learned a lot that will be helpful to his scholarship. But writing the brief and preparing the arguments, including participating in moot courts, have absorbed much of his time for the last three months.
Of course he would love another opportunity to argue before the Supreme Court, he says. Just not right away.