# Petition for Writ of Certiorari — Sutton v. United Air Lines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0183%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 527 U.S. 471 ## Text Suerome Court, U.S ) [LED ~ 971943 0UN1 wm No. GFRE OF TRE TERK IN THE Supreme Court of the United States OCTOBER TERM, 1997 KAREN SUTTON AND KIMBERLY HINTON, - Petitioners, UNITED AIR LINES, INC., Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT VAN AARON HUGHES Counsel of Record for Petitioners TUCKER K. TRAUTMAN IRELAND, STAPLETON, PRYOR & PASCOE, P.C. 1675 Broadway, Suite 2600 Denver, Colorado 80202 Telephone: (303) 623-2700 SHAWN D. MITCHELL 12530 Newton Street Broomfield, CO 80020 Telephone: (303) 464-9409 Attorneys for Petitioners ‘ ee ee eee «© - QUESTIONS PRESENTED 1. Where an airline pilot’s uncorrected vision is so poor that it constitutes a physical impairment under the Americans with Disabilities Act, is the pilot nevertheless excluded from protec- tion under the Act if her vision can be corrected? 2. Should courts defer to the EEOC Interpretive Guidance that disabilities should be analyzed in their uncorrected state? 3. Is a commercial pilot regarded as disabled by a major airline that refuses to employ her as a pilot for that airline due to her poor vision? TABLES OF CONTENTS QUESTIONS PRESENTED ..------:***" "°° TABLE OF AUTHORITIES ...------*s*° 7°" OPINION BELOW ....----scscrsrrrrn ne FURIGENCTION. 0.00 cee et esecwereneses STATUTES AND REGULATIONS INVOLVED . STATEMENT OF THE CASE ..-------*" "°° ARGUMENT FOR GRANTING THE WRIT ... 1. Il. THE TENTH CIRCUIT'S HOLDING THAT ANALYSIS OF DISABILITIES SHOULD INCLUDE AVAILABLE CORRECTIVE MEASURES THROWS INTO TURMOIL THIS IMPORTANT AREA OF THE LAW ...-- +++ 7°7"" A. The Tenth Circuit's Decision Greatly Exacerbates the Conflict Among the Circuits Regarding Corrective Measures under the ADA...------ B. The Tenth Circuit's Decision Is at Odds with the EEOC’s Interpretation and Worsens Confusion as to Deference to Be Afforded the Agency’s Guidance... +--+ +++ 5*"" THE TENTH CIRCUIT'S HOLDING THAT PETITIONERS ARE NOT REGARDED AS DISABLED CONFLICTS WITH THE RULE THAT THE DEFENDANT'S PERCEPTION NEED NOT BE COMMON TO THE OUTISTEY 2 ccc cet cusennernree® CONCLEISION . oe oa on one OF eer n ena APPENDIX Opinion of the United State Appe s Court of for the Tenth Circuit filed November 26, a Order of the United States C ourt of Appe the Tenth Circuit Filed March 3, pf ia _ ol ae on Opinion and Order of the United sa Court for the District of Colorado August 28, 1996 *_* * *_* * **eeeeneeeees *“*e . IV TABLE OF AUTHORITIES CASES Amold v. United Parcel Serv. 136 F.3d 854 (ist aE A ae ep RET qa ees Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905 DU hci edwin ker aanndweninnes Baulos v. Roadway Express, Inc., 139 F.3d 1147 Co? 3 eee rrr rrr? err Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1997) . Byrne v. Bd. of Education, 979 F.2d 560 (7th Cir. RET Op reer rr ks ver te Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)... . 2... +. Cline v. Fort Howard Corp., 963 F. Supp. 1075 i GH WH Fos esc i cacvetiadesss: a: Coghlan v. HJ. Heinz Co., 851 F. Supp. 808 (N.D. Tes BBs 6. ca cd editors ec Berens dudes. Cook v. Rhode Island Dep't of Mental Health, Retardation & Hosps., 10 F3d 17 (Ast Cir. 1993) . Davidson v. Midelfort Clinic, Lid., 133 F.3d 499 (hts Che: WEE pete zo aches Credo hewas 4s. Doane v. City of Omaha, 115 F.3d 624 (8th Cir. 1997), cert. denied, 118 S. Ct 693 (1998) ...... Ellison v. Software Spectrum, Inc., 85 F.3d 187 (Sth A ela a it A A EES Sih Fallacaro v. Richardson, 965 F. Supp. 87 (D.D.C. WO Ni sce pit ape Salli tr as 4 ep Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (Sth Cir. 1997), cert. denied, 118 S. Ct. 1050 eine aed as ARRAS SE Meee Forsi v. Bowen, 794 F.2d 931 (4th Cir. 1986). . . . Gaddy v. Four B Corp., 953 F. Supp. 331 (D. Kan. SOOEE oo gneve toréeewasesasesuarenese' General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) . Gilday v. Mecosta County, 124 F.3d 760 (6th Cir. v Haris HAW Contracting Co., 102 F3d 516 (11th ore Holihan Lucky Stores, ne, 87 34 362 (in Gi.” 41998), cen. denied, 117 S. C1349 (1997) Saas Lat OR HC nn... 1 136 F.3d 933 (3d Cir. 1997)... es md .. 7,810 Mentor Sax. Bank, FSB v. Vinson, 477 US 57 st PSS EL AIO a A 1 [3 hee F.3d 609 (8th Cir. ee 4 10 ir gait: otis iad 7 Sicard v. City of Sioux City, 950 F (N.D. Iowa 1996) 06 ks eiee neh ae 10 "500 1S University Shalala, $12 US 304 (1994)... 5 be hai as 10 Supp. 898 (ED. Pa 1997). 6, 10 STATUTES AND REGULATIONS Sa80 6s .......... 28 U.S.C. § 1254(1) (1994)... > i |) SS ileal dal passim : ————e. 29 CER. § 1630.24) (1997). 9” passie vi 20 CER. § 1630, App. $ 1630.2(h) & GMI) (IDOI) owe vvasccecerceccscseseee’ LEGISLATIVE HISTORY i .. . o6ewebee H.R. Rep. No. 101-485 (11) (199°) H.R. Rep. No. 101-485 (III) (1990) ..-- +--+ 0° S. Rep. No. 101-116 (1990)... ce cercrereres PAGE No. IN THE Supreme Court of the United States OCTOBER TERM, 1997 KAREN SUTTON AND KIMBERLY HINTON, m Petitioners, UNITED AIR LINES, INC., Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Karen Sutton and Kimberly Hinton (‘Petitioners” or “Pilots”) respectfully request that a writ of certiorari be issued to review a decision of the United States Court of Appeals for the Tenth Circuit entered on November 26, 1997. The Tenth Circuit affirmed the order of the United States District Court for the District of Colorado dismissing the Pilots’ claims against Respondent United Air Lines, Inc. (“United”’). OPINION BELOW The opinion of the United States Court of Appeals for the Tenth Circuit is reported at 130 F.3d 893, and is reproduced in the Appendix at A-1. The Order of the United States District Court for the District of Colorado is reproduced in the Appendix at A-27. p JURISDICTION The judgment of the Court of Appeals was entered on November 26, 1997. (Appendix A-1.) Pilots’ Petition for Rehear- ing and Suggestion for Rehearing En Banc was denied on 2 March 3, 1998. (Appendix A-26.) This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1) (1994). STATUTES AND REGULATIONS INVOLVED Section 3(2) of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12102 (1994), provides: (2) Disability. The term “disability” means, with respect to an individual— (A) aphysical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. Section 1630.2(j) of the Americans with Disabilities Act of 1990 Regulations, 29 C.F.R. § 1630.2(j) (1997), provides in perti- nent part: (j) Substantially limits— (3) With respect to the major life activity of working— (i) The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. (ii) In addition to the factors listed in paragraph (j)(2) of this section, the following factors may be considered in determining whether an individual is substantially limited in the majo. ‘fe activity of “working”: (A) The geographical area to which the individual has rea- sonable access; (B) The job from which the individual has been disqualified because of an impairment, and the number and types of jobs 3 utilizing similar training, knowled ; ge, skills or abilities, withi ne ee mere area, from which the individual is also deeats use of the impairment (class of jobs); and/or _(C) The job from which the indivi ndividual has been di alifi pee roe ni an impairment, and the number and sane 66 pa ak, Hoan. similar training, knowledge, skills or abilities geographical area, from which the individual is also disqualified beca impai wastes insane use of the impairment (broad range of jobs in EEOC In Guidance for sion os § 1630.2(j), 29 CER. dese App. § -2(h) & (j)(2) (1997), provides in pertinent (h) ...The existence of an impai i ice of pairment is to be determi yors regard to mitigating measures such as pediinan on ya ss Prosthetic devices. See Senate Report at 23, House ‘or Report at 52, House Judiciary Report at 28. For example, (j)(2) e determination of whether an individual is sub- STATEMENT OF THE CASE Petitioners are twin sisters who isi are extremely well me a to be airline pilots. They aaa are + seo ~ | aye or commuter airlines, however it is their lifelong goal Or a major global air carrier. 4 As alleged in their Amended Complai nt, the ’ vision i poorer than the standard for legal token for ae vine: 4 Specifically, both of the Pilots have uncorrected vision of 20/200 or worse in the right eye, and 20/400 or worse in the left eye. Without the use of corrective measures, Petitioners cannot con- duct such basic activities as driving an automobile or watching television. When wearing glasses or contact lenses, however, the Pilots’ corrected vision is 20/20, and the FAA has awarded both a first class medical certificate. Petitioners applied to United for employment as pilots. United invited the Pilots to interview at its Denver Flight Train- ing Center, and administered a flight simulator test to Petitioner Hinton, on which she performed well. Nevertheless, United rejected Petitioners from any consideration as pilots due to their vision. United requires applicants to have uncorrected vision of 20/100 or better in order to be considered for any of its thousands of pilot positions around the world, regardless of model of aircraft, air route, Or flight conditions.’ United asserts that this is a rational safety requirement, but Pilots have alleged that the requirement reflects only stereotype, myth, or unsub- stantiated fears, and bears no relationship to safety. Indeed, Petitioners believe that United does not apply its vision require- ment to current pilots in its own fleet. The Pilots brought suit against United under Sec- tion 3(2) of the Americans With Disabilities Act (“Act”), 42 U.S.C. § 12102(2) (1994). They alleged that United violated the Act by rejecting them because they were disabled, or because United regarded them as disabled. Plaintiffs sought legal and equitable relief provided for in the Act, including injunctive relief ordering United not to apply unlawful criteria in future hiring decisions. The district court granted United’s motion to dismiss the Pilots’ action. United did not dispute that the Pilots were dis- qualified from its pilot positions because of their impaired vision. Nevertheless, the district court held that the Pilots’ vision is not a ! Other global air carriers have similar vision requirements, although Petitioners have been able to fly commercially for commuter airlines. 5 pre mad limiting impairment within the meaning of the poet eee appeals affirmed. The court of appeals con- price meray are physically impaired within the meaning patric om ve ne impaired in the major life n the corrective renege. are considered. The court pate for! ert re “7 a was directly contrary to interpretive guidelines of ployment Opportunity Commission (“EEOC’’) and to decisions of the Eighth, Ni as , Ninth, ae (Appendix A-14 to A-16 recy Naor neglemnenaaR ARGUMENT FOR GRANTING THE WRIT Pai snoevae wo clouds an important area of the law, pe Sh s ps among the circuits as to whether cor- eae neko be considered in analyzing disabilities ate vebe 2 hr wer court's holding that corrective mea- per sop tpn eo en into account expressly conflicts with the reyoharggse jority of circuit courts to have considered the issue. rejects the guidance of the EEOC on this issue, thus worsening the existing confusio afforded the EEOC’s adieiah as to the proper deference to be “ oon eng: the court below confused the state of the law reds ne Joeen » ew: 4 adequately allege that United ’ - The court reasoned that the Pilot — haplnn ge from all pilot positions at all airlines, which pe >a ipa rule that, in applying the “regarded yi ‘ S$ must focus upon the attitudes of the defen- employer and not others in the industry. 6 S INTO RRECTIVE MEASURES THROW TURMOIL THIS IMPORTANT AREA OF THE LAW. A. The Tenth Circuit's Decision Greatly Exacerbates the Conflict Among the Circuits Regarding Corrective Measures under the ADA. oe as nye it tially limit[ ] one or more . - . major life activities ee “ets can be corrected with glasses or contact lenses. ne mir usage pnt “Be gs ce hears -asborrts under the i the issue Of W uiries ; poctp et be made without regard to such mitigating OF - rective measures. (Appendix A-14, A-15 nn.7 whos ftir egred nized that its holding is contrary to the E maging corrective measures should not be egos She Sage 0 ‘oinine those courts rejecting the IC's view, Ten pA ares significantly deepened the conflict among the circuits in this important area of the law. on this issue.? For a short period, however, gr vied ao. unanimity among the courts of appeals. The Seventh, . (holding under Rehabilitation Act against os _ ay yer . sures of contact lenses); Wilson v. Pennsylvania — ogni , : Supp. 898, 902-07 (E.D. Pa. 1997) (same holding anode ont sae : Ci of East Peoria, 881 F.Supp. 1106, 1129 (C.D. Il. 1995) (senieh Sarsyc » United Parcel Serv., 862 F. Supp. 336, 340 (W.D. gy - awn ms EEOC interpretation) with Cline v: Fort Howard Corp.. 963 F. SUPP. 7. 1081 n.6 (E.D. Okla. 1997) (asserting that courts — ag _ impairment with regard to corrective devices), Gaddy : ona : inate cmt < Seon. 37. nus (WD. Wis. 1996) (same), Cokint ¥ Spy te Cio., 851 F Supp. 808, 813 (N.D. Texas 1994) (same). 5 Ninth, and Eleventh Circuits had all agreed that disabilities must be analyzed without regard to medications, prostheses or other possible corrective measures. Doane v. City of Omaha, 115 F.3d 624, 627 (8th Cir. June 16, 1997) (holding, specifically in the context of impaired vision, that “analysis of whether [plaintiff] is disabled does not include consideration of mitigating mea- sures”), cert. denied, 118 S. Ct. 693 (1998); Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995) (same holding); Har- ris v. H&W Contracting Co., 102 F.3d 516, 520-21 (11th Cir. 1996) (holding that disabilities must be assessed without regard to mitigating measures); Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir. 1996) (same), cert. denied, 117 S. Ct. 1349 (1997). At the circuit court level, only Ellison v. Software Spectrum, Inc., 85 F.3d 187, 191-92 n.3 (Sth Cir. 1996), contained language arguably to the contrary.‘ On September 2, 1997, however, the Sixth Circuit held that disability determinations should be made in light of the effect of medications or other corrective measures. Gilday v. Mecosta County, 124 F.3d 760, 767-68 (6th Cir. 1997) (as modified on October 39, 1997) (discussion contained in concurrence of two of three circuit judges). The Sixth Circuit so interpreted the lan- guage of the ADA notwithstanding the EEOC’s contrary posi- tion, supported by legislative history of the ADA. Jd. at 767. The Tenth Circuit’s decision, also squarely rejecting the EEOC’s view against consideration of corrective measures, removes any doubt as to the extent of division among the lower > More recently, the First and Third Circuits have reached the same conclusion. Arnold v. United Parcel Serv., 136 F.3d 854 (ist Cir. 1998); Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933 (3d Cir. 1997). * The Fifth Circuit implied, but did not squarely hold, that it would take into account corrective measures, noting that “had Congress intended that substantial limitation be determined without regard to mitigating mea- sures, it would have provided for coverage under § 12102(2)(A) for impair- ments that have the potential to substantially limit a major life activity.” /d_; but see Foreman v. Babcock & Wilcox Co., 117 F.3d 800,805 (Sth Cir. 1997) (quoting EEOC guideline against consideration of mitigating measures without discussion), cert. denied, 118 S. Ct. 1050 (1998). 8 courts. This conflict is now ripe for determination by this Court. No purpose can be served by tolerating two widely divergent interpretations of the ADA in the various courts that have consid- ered this question, or abandoning litigants in those jurisdictions which have not yet reached this issue to complete uncertainty as to how this important federal legislation will be interpreted. As the many decisions cited above amply illustrate, this conflict impacts a very wide range of disabilities that may be affected by various types of corrective measures. Examples of the types of corrective measures for disabilities at issue in these cases include medication for illnesses, e.g., Harris, supra (Graves’ dis- ease could potentially be treated); Arnold, supra (diabetes poten- tially could be ameliorated through medication); Matczak, supra (same), therapy for physical or psychological disorders, e.g., Holihan, supra (activities undertaken as treatment for depres- sion); Ellison, supra (breast cancer treated with radiation ther- apy), and hearing aids or other devices. E.g., Gaddy, supra (asthma treated with inhaler and breathing machine). The Tenth Circuit has already extended its reasoning in the instant case to hold that high blood pressure must be analyzed accounting for potentially available treatment with medication. Murphy v. United Parcel Serv., 1998 WL 105933 (10th Cir. March 11, 1998). The view of the Sixth and Tenth, and possibly Fifth, Circuits would thus carve out entire categories of disabled persons who would otherwise enjoy the protections of the ADA, despite legis- lative history to the contrary.5 The Tenth Circuit’s restriction on the effect of the ADA significantly undercuts the goal of the Act $ The relevant legislative history supports the view that the ADA is applicable without regard to corrective measures. See S.Rep. No. 101-116, at 23 (1990); H.R. Rep. No. 101-485(II), at 52, reprinted in 1990 U.S.C.C.A.N. 303, 334 (“Whether a person has a disability should be assessed without regard to the availability of mitigating measures, such as reasonable accommodations or auxiliary aids. For example, a person who is hard of hearing is substantially limited in the major life activity of hearing, even though the loss may be corrected through the use of a hearing aid. ) HLR. Rep. No. 101-485(III), at 28, reprinted in 1990 U.S.C.C._A.N. 445, 451 (“House Judiciary Report”). 9 “to protect individuals who have an underlying medical condi- tion or other limiting impairment, but who are in fact capable of doing the job, with or without the help of medications, prosthetic devices, or other ameliorative measures.” Amold, 136 F.3d at 861. Such a dramatic limitation on the reach of this important Statute warrants this Court’s attention. B. The Tenth Circuit’s Decision Is at Odds with the EEOC’s Interpretation and Worsens Confusion as to Deference to Be Afforded the Agency’s Guidance. The decision below is significant not only for the result it reaches, but also for the lower court’s cavalier attitude toward the EEOC’s interpretation of the controlling provisions of the ADA. By showing no deference to the agency’s guidance, the lower court further disrupts the already murky rule of law as to the appropriate deference to afford. As evidenced by the split among the circuits, there is more than one possible interpretation of the ADA’s definition of “dis- ability.” 42 U.S.C. § 12102(2)(A). In conjunction with its regula- tions to carry out the directives of the ADA, see 42 U.S.C. § 12116 (1994) (requiring EEOC to issue regulations), the EEOC issued its Interpretive Guidance, which construes the provision in question to mean that both the existence of an impairment, and the determination of whether that impairment substantially limits a major life activity, must be made on a case by case basis, “without regard to mitigating measures such as medicines, or assistive or prosthetic devices.” 29 C.ER. § 1630, App. § 1630.2(h) & (j)(2) (1997). Typically, courts would be obligated to adhere to the agency’s construction of the statute, so long as it is not “arbitrary, capricious, or manifestly contrary to the statute.” Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). This Court has instructed, however, that an agency’s inter- pretive guidelines, as opposed to regulations promulgated under the Administrative Procedure Act, 5 U.S.C. § 552 (1994), are not 10 necessarily binding upon courts, but rather “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (quoting General Elec. Co. v. Gilbert, 429 U.S. 125, 141-42 (1976)). Even before this case arose, courts exhibited confusion in attempting to apply Chevron and Meritor to determine the proper level of deference to be afforded EEOC interpretive pronounce- ments regarding the ADA. In Harris v. H&W Contracting, supra, the Eleventh Circuit applied Chevron, and concluded that it could not disregard the EEOC’s Guidance. 102 F.3d at 521. The court in Wilson v. Pennsylvania State Police Dep't, 964 F.Supp. 898, 903-05 (E.D. Pa. 1997), gave Chevron deference to the EEOC’s guideline on corrective measures, specifically in the context of impaired vision. The court noted that the EEOC Guidance was subject to public notice and comment, and carried more weight than typical interpretive rules. /d. at 903 n.4. The Third Circuit in Matczak stated that the EEOC Guid- ance does not command the same deference as the underlying regulations, but still concluded that courts must give the EEOC’s guidelines controlling weight unless plainly erroneous. 136 F.3d at 937 (citing Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994)); see also Sicard v. City of Sioux City, 950 F.Supp. 1420 (N.D. Iowa 1996) (applying deference in context of impaired vision). Other courts interpreting the same language have appar- ently not given the EEOC Guidance controlling weight, but some lower yet significant level of deference. E.g., Amold, 136 F.3d at 866; cf, Olson v. Dubuque Community School Dist., 137 F3d 609, 612 (8th Cir. 1998) (EEOC enforcement guidance entitled to deference). Each of these courts was careful to give some level of deference to the EEOC Guidance, although they are inconsis- tent as to exactly how much deference to give. In contrast, here the Tenth Circuit expressly did not defer to the expertise of the EEOC, stating only that the “Guidance may be entitled to some consideration in our analysis.” (Appendix A-9 n.3.) The lower 1] court's approach is at odds with Meritor and is marke a this Court’s pattern of showing deference moni sooner 4 ro (noe geepere=—pehacarar v. Robbins, 519 U.S. 452, 117 S. > > ome ) (giving deference to position of Secretary prs ina legal brief); Martin v. Occupational Safety a Health Review Com'n, 499 U.S. 144, 157 (1991) (informal Tpretive rules are entitled to some weight on judicial review). The EEOC’s Guidance and other publica i tions encom range of issues under the ADA well beyond the meaion of corrective measures addressed by the court below. This Court's me = ——e basis for Petitioners’ action is the allega- po songs se gre as having an impairment by United nagaes. staat jobs. 42 U.S.C. § 12102(2)(C) (1994). yen rejected this claim because “the ‘class of jobs’ to poe a o must compare themselves is that of all pilot hd. airlines. (Appendix A-22.) This holding is directly with the prevailing rule that it is the individual The Seventh Circuit recently summarized the majority rule that, unlike the actually disabled prong of the ADA, the 12 “regarded as” disabled standard centers upon the specific employer's percepuons: Section 12102(2)(A) looks for proof beyond the plain- tiff’s inability to satisfy the expectations of a single employer; to be “substantial,” a limitation on the abil- ity to work must be one that affects the plaintiff's abil- ity to perform a class or range of jc'rs b efore it qualifies as a disabling limitation under the ADA. For purposes of § 12102(2)(C), the employer's perception of the plain- tiff’s inability to work must have a comparable breadth. A perception that [her disability] rendered [plaintiff] unfit to work as a psychotherapist, for example, might bring her within the scope of 12102(2)(C). Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, (7th Cir. 1998) (emphasis added) (footnote and multiple citations omitted). Under this rule, United falls within the scope of the “regarded as” test if it perceives Petitioners as unfit to work as pilots. In its opinion, the Tenth Circuit gave lip service to the premise that “{i}t is the perception of the employer in the case, not the perceptions or practices of others in the industry, that matters.” (Appendix A-22) (citing Cook v. Rhode Island Dep't of Mental Health, Retardation & Hosps., 10 F.3d 17, 25-26 (1st Cir. 1993) (“regarded as” prong “does not condition . . . claims on either the quantum of a plaintiff’s application efforts or on her prospects of finding other employment”)). This is only logical; the perceptions of other airlines would be relevant to a determination of whether Pilots actually are substantially impaired in the life activity of working, but not to the issue of whether United so perceives them. See House Judiciary Report, at 30, 1990 U.S.C.C._AN. at 453 (person perceived by employer as disabled is “regarded as” disabled whether or not employer's perception is shared by others in the field). 13 ‘pnited will not hire Pilots because it regards them as disabled. It coed ne vnether other employers may hire them, which depends } course upon whether those employers also By implicitly revising the “re as” below has once more broken parr Bene ay beat a a noe tearm ely renders the “regarded as” prong meaning- pon its decision, an employer cannot be liable unless all cmpieyers also prohibit the plaintiff from working, in pe ay = prety elm pig o swermie employer may with impunity unilaterally Geninien aes mployees it incorrectly perceives to be disabled. In light of the mischief the Tenth Circuit's holding would do to this provision of the ADA, this Court’s attention is required to resolve the issue. © United will not hire Pilots for i positions. any of their is i precusion that applies ony to a particular, isolated postion, Compare Byrne of Education, 979 F.2d 560, 566 (7th Cit. 1992) (asthma pre- aaah ae ae teaching at two specific schools, but not at other camth Same district); Forrisi v. Bowen, 794 F2d 931 Li - 1986) (acrophobic employee precluded from performing repair- — position at a particular facility requiring him to climb multiple stairs | ladders). United's vision standard affects a class of jobs in that it is not held in the analogous context of truck drivers hampered by disabilities. tine Se Best x. Shell Oil Co, 107 F.3d 544, $48 (7h Ci. 1997) (finding emuine inv as to whether employer regarded driver with injured knee as dis- toms); Bandas, Giallowed him from performing any truck driving posi ( 5 naiees eatiney Rigrets, One, 139 F.3d 1147 (7th Cir. 1998) (sleep disorder at precluded driver from sleeper trucks but not from other driving positions offered by employer did not affect a class of jobs). 14 CONCLUSION The decision below creates or exacerbates conflicts among the circuits in important areas of federal employment law, and threatens to undermine the purposes of the ADA and to render meaningless the EEOC’s guidance. A writ of certiorari should issue to review the Tenth Circuit's decision. submitted this ist day of June, 1998. VAN AARON HUGHES Petiti TUCKER K. TRAUTMAN Ireland, Stapleton, Pryor & Pascoe, P.-C. 1675 Broadway, Suite 2600 Denver, Colorado 80202 Telephone: (303) 623-2700 SHAWN D. MITCHELL 12530 Newton Street Broomfield, CO 80020 Telephone: (303) 464-9409 for Petit A-1 PUBLISH KAREN SUTTON AND KIMBERLY HINTON, v. Plaintiffs-Appellants, UNITED AIR LINES, INC., Defendant-Appellee. No. 96-1481. United States Court of Appeals, Tenth Circuit. Nov. 26, 1997. Lisa Hogan (Patrick F. Carrigan and Beth A. Doherty Quinn with her on the brief) of Brownstein, Hyatt, Farber & Strickland, Denver, CO, for appellee. Shawn D. Mitchell of Ireland, Staple- ton, Pryor & Pascoe, Denver, CO, for appellants. Before BRORBY, BARRETT, and McKAY Circuit Judges. BARRETT, Senior Circuit Judge. Karen Sutton and Kimberly Hinton (collectively referred to as Plaintiffs) appeal the district court’s dismissal of their Ameri- cans wi Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., for regional commuter airlines. However, they a “life long goal to fly for a major air carrier.” In 1992, United Air Lines, Inc. (United) and were invited to interview in Denver, Colorado. At their interviews, Plaintiffs were informed that their uncorrected vision disqualified them ne sas onal tions with United, in that applicants for pilot ae wo uncorrected vision of 20/100 or better in eac —_ costae’ uncorrected vision is 20/200 in the right eye and oe eye. [FN1] Plaintiffs’ corrected vision 1s 20/20 in eyes. ; tot om with visual acuity of 20/200 can see an object fr saaeaw well as a person with 20/20 vision can see an object at 200 feet. imi i i hiring nited discriminated against them in the hising cy tn ge eee ee sion, and/or the oe ee ee asserted they are disabl ed under hao pos gcemns their uncorrected vision substan tially ate ad major life activity of seeing. They averred their set me ee are permanent and that without corrective measures, ress “effectively be unable to see” well enough to —— egg ao everyday activities such as driving, watching te yor: . ing. In addition, Plaintiffs alleged United regaree vole Fisabled j violation of the ADA because United’s policy pooere vision of 20/100 or better blocks — ye Sane = from an entire class of employment, global espe pe wit any objective evidence of job relatedness or ty. istri d United's Au 28, 1996, the district court grante< . PE dismiss 3 . The court concluded that oe A ngeearen Complaint failed to state a claim under the ot Sha court ruled that Plaintiffs were not disabled wi oe tate 0 f the ADA because their vision did not substant a pe life activity. The court stated that with corrective me on Plaintiffs’ were “able to function identically to individuals wi A-3 ADA. Millions of Americans suffer visual impairments no less serious that those of the Plaintiffs. Under such an expansive reading, the term ‘disabled’ would become a meaningless phrase, subverting the policies and purposes of the ADA and distorting the class the ADA was meant to protect.” /d. at *5. With respect to Plaintiffs’ claim that United regarded them as disabled in violation of the ADA, the district court found no support for Plaintiffs’ allegation that United regarded them as substantially impaired in the major life activity of seeing based on stereotype, myth, or unsubstantiated fears. » Id. At best, the court reasoned that Plaintiffs established that United regarded them as “unable to satisfy the requirements of a particular passenger airline pilot position.” Id. at *6. On appeal, Plaintiffs contend the district court erred in dismissing their Amended Complaint for failure to state a claim under the ADA. Plaintiffs assert that they alleged sufficient facts to establish that: (1) they were qualified applicants with a disabil- ity because they are substantially limited in the major life activity of seeing, and (2) United regarded them as having a substantially limiting impairment because its policy deprives them of employ- ment throughout the global air carrier industry with no rational job-related basis. Plaintiffs argue that the district court erred in evaluating their physical impairment, their vision, with the bene- fit of corrective measures, in direct contradiction to the Equal Employment Opportunity Commission’s (EEOC) Interpretive Guidance, which provides that the determination of whether an individual has a physical impairment and whether an individual is disabled within the meaning of the ADA must be done without regard to mitigating or corrective measures. United responds that Plaintiffs’ vision does not constitute a “physical or mental impairment” within the meaning of the ADA and that, even if it does, it does not “substantially limit” a major life activity. First, United contends that a minor, relatively common condition, such as Plaintiffs’ nearsightedness and sub- sequent need for glasses, is not an impairment under the ADA. Second, United asserts that even if Plaintiffs are impaired within A-4 the meaning of the ADA, the EEOC's ee eee stating that disability determinations be made wit rors = ~ mitigating OF corrective measures, 1S In direct - oats ADA‘s statutory requirement that a disability P eee mental impairment that “substantially me «sere ago maior life activities of such individual. Te USS.C. § 12101(2). United argues that to one hs coo without regard to mitigating measures would ~ pose ae statutory requirement we = bey omen tt pte scaw nl limiting. United reasons that ! nein orortmag tive measures to mitigate the effects 2 = pe et Coete degree such that there Is no substantial imitatic “ ae ivi i wal is not disabled within the meaning actly, Sn Ee te asserts that Plaintiffs = apse od substantive evidence it regarded them as anything ot wut conga unable to meet the rational job-related safety requi the jobs they sought. zi, We review the district court's dismissal of a won wml failure to state a claim upon which relief may be Lap a, 2 Chemical Weapons Working Group, Inc. v. Unit beh oe J the Army, 111 F.3d 1485, 1490 (10th Cir.1997). “We phe oo dismissal under Fed.R.Civ.P. 12(b)(6) only when it 9 Me — he inl a eel op al wel pene at would entitle (them i quail of the roapn = eed re ent | evo — i ost favorable to the plaintill|s}. : na Fd 1215, 1224 (10th Cir.) (quoting Fuller v. me or 1016, 1020 (10th Cir.1996)), cert. denied, — US. fe i sa “ _— LEd.2d — (1997). With this standard in mind, Plaintiffs’ ADA claims. Discussion vidual with a disability because of the disability of such ree in regard to job application procedures, the hiring, gee or discharge of employees, employee compensation, } , A-5 and other terms, conditions, and privileges of employment.” {[FN2] 42 U.S.C. S 12112(a). See Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir.1994) (quoting 42 U.S.C. § 12112(a)), cert. denied, 513 U.S. 1152, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995). The ADA defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. S 12111(8). See White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995) (quoting 42 U.S.C. § 12111(8)). FN2. In this analysis, we rely on cases interpreting both the ADA and the Rehabilitation Act of 1973, 29 U.S.C. S 701 et seq., because the standards are largely the same. See Andrews v. Ohio, 164 F.3d 803, 807 (6th Cir.1997) (concluding “cases construing one statute are instructive in construing the other’); Wooten v. Farmland Foods, 58 F.3d 382, 385 n. 2 (8th Cir.1995) (“cases interpreting either [ADA or Rehabilitation Act] will be instruc- tive for this analysis” of the ADA); Bolton v. Scrivner, Inc., 36 F.3d 939, 943 (10th Cir.1994) (“Congress intended that the relevant caselaw developed under the Rehabilitation Act be generally applicable to the term ‘disability’ as used in the ADA.””) (quot- ing 29 C.ER. § 1630, App. 1630.2(g)), cert. denied, 513 U.S. 1152, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995). To establish a claim under the ADA, Plaintiffs must demon- strate that: (1) they are disabled persons within the meaning of the ADA; (2) they are qualified, i.e., able to perform the essen- tial functions of the job, with or without reasonable accommoda- tion (which they must describe); and (3) United discriminated against them in its employment decision (the job application procedure and/or hiring process) because of their alleged dis- ability. See Siemon v. AT&T Corp., 117 F.3d 1173, 1175 (10th Cir.1997); White, 45 F.3d at 360-61. Taking all Plaintiffs’ allegations in their Amended Com- plaint as true, as we must, Plaintiffs have established they are “qualified” for the position of commercial airline pilot and that United refused to continue their interviews (or hire them) due to A-6 ili ision. Plaintiffs are i d disability, their uncorrected vision. ffs are ~ poate airline pilots with regional commuter — each holds an airline transport pilot license, soenctlige OE - United’s requirement for a commercial license, e r recorded thousands of hours of — re we ayy 0 h has a First-Class med cert from yom Administration (FAA). Additionally, United sent = plaintiff a letter confirming that her uncorrected vision, oe plaintiff’s alleged disability, disqualified her ae wag oe ited pilot. Thus, at issue in this case, is whether Piai tg hes them as “individuals with a disability” within the meaning of the ADA. | = The ADA defines a “disability” as “(A) a physical or — impairment that substantially limits one or more of the major li : ivities of such individual; (B) a record of such an waaae : or (C) being regarded as having such an impairme on b ainer § 12102(2). The statutory requirement that disab ty nap tions be made “with respect to the individual,’ contempla individualized, and case-by-case determination of ~ erp iven impairment substantially limits a major life activity 0 + individual. Runnebaum v. NationsBank — pre dae : Cir.1997) (en banc ) (citing v. Natione pry pe ae Inc., 53 F.3d 55, 59-60 (4th - eed (collecting cases holding that a prey - of — must be om on a case-by-case basis)). See also omeyer V. Stanley ct 7th Cir.1996) (holding tha Assocs., Inc., 91 F.3d 959, 962 ( oldin, iy determination of disability must be made on an pooengenge case-by-case basis”); Katz v. City Metal Co., Inc., 87 F. : , - (ist Cir.1996) (same); Lowe v. Angelos Italian yapecprat sol F.3d 1170, 1174 (10th Cir.1996) (applying factors alized manner). Here, Plaintiffs allege they ee “disabled” verte hin ing of the subparagraphs (A) anu 1 C) because heir ee, vision is a physical impairment tuat oe Stoine major life activity of seeing and United regarded “oe ye a substantially limiting impairment when it disq A-7 from all airline pilot positions. We address each of Plaintiffs’ contentions in turn. I. 42 U.S.C. S 12102(2)(A)—Actual Disability Subparagraph (A) defines a “disability” as “a physical or mental impairment that substantially limits one or more of the major life activities” of the individual. » 42 U.S.C. § 12102(2)(A). Therefore, to qualify as having a “disability” pursuant to subpar- agraph (A), Plaintiffs must establish (1) that their vision is a “physical or mental impairment;” and (2) if their vision is an impairment, that it “substantially limits one or more of the[ir] major life activities.” See id. 1. Physical or Mental Impairment Plaintiffs must establish that their vision is a “physical or mental impairment.” See id. The ADA does not define a “physi- cal or mental impairment.” Hence, we are confronted with a question of statutory interpretation. Our inquiry begins with an examination of the language of the statute itself. Ramah Navajo Chapter v. Lujan, 112 F3d 1455, 1460 (10th Cir.1997). “‘When the terms of the statute are clear and unambiguous, that lan- guage is controlling absent rare and exceptional circumstances.”” Id. (quoting United States v. Thompson, 941 F.2d 1074, 1077 (10th Cir.1991), cert. denied, 503 U.S. 984, 112 S.Ct. 1667, 118 L.Ed.2d 388 (1992) (quotation omitted)). In addition, “[w]hen a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning.” Smith v. United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 2054, 124 L.Ed.2d 138 (1993). “[C]ommon and ordinary usage may be obtained by reference to a dictionary.” United States v. Roberts, 88 F3d 872, 877 (10th Cir.1996). The term “impairment” is not defined by the statute. How- ever, the statute does require that the impairment “substantially limit” a major life activity. See 42 U.S.C. § 12102(2)(A). Thus, the impairment must be significant, and not merely trivial. Welsh v. City of Tulsa, Okl., 977 F.2d 1415, 1417 (10th Cir.1992). See also A-8 Runne i t must um, 123 F.3d at 167 (“Because the impairment mu Seen ‘substantial limitation’ on ‘one or more of ae ve activities,’ the impairment must be significant, = Te ial.””); Byrne v. Board of Educ., Sch. of West Allis- ree timer ?» ” eas 560, 564 (7th Cir.1992) (“The statute s ve os reo ed limiting adjectives ‘substantial’ and ‘major emphi Sao impairment must be a significant one.”); Fonsi a ent F.2d 931, 933-34 (4th Cir.1986) (concluding that {t] - — language, requiring a substantial limitation of pane a > ity, emphasizes that the impairm ent must be a sign exp cml In addition, Webster's Dictionary defines a Hg ay oer worse by or as if by diminishing in some Lage fare a ot ster’s Ninth New Collegiate Dictionary J > ( ae nie Black’s Law Dictionary 677 (Sth ed. 1981) (“To we Sas no worse, to lessen in power, diminish, or relax, or ot Sot Od wOrs ‘njurious manner.”); Ballentine’s Law Dictionary 4 =d. 1969) (“To make worse, to diminish in quality, value, exce lence, or strength, to deteriorate.”’). i iti ulgated by the also guided by the definition prom moo inits hesarh_ rm issued to me rape a Saati 9 CER. § 1630.1(a); 42 S.C. : vane to issue regulations to implement wen | of arse The regulations define a “physical or mental impai iologi i dition, cosmetic disfig- hysiological disorder, or con ; oicn anne ne loss affecting one or more of the postal ing body systems: neurological, musculoskeletal, specis “ organs, respiratory (including speech nrg 2 = . reproductive, “899 digestive, genito-urinary, phatic, skin and endocrine, Or 2 (2) Any mental or psychological disorder, such as men i i ional or mental ill- c brain syndrome, emotion a “cad specie earning disabilities. 29 CFR. § 1630.2(h). ist 1 i i f the ADA, the her assist in the interpretation oO a... published an Interpretive Guidance on Title I ~ ars Americans with Disabilities Act. 29 C.ER. § 1630, App. A-9 the EEOC’s Interpretative Guidance, “[t}he existence of an impairment is to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices.” [FN3] 29 C.ER. § 1630, App. § 1630.2(h) para. 2. FN3. It is well established that we must defer to the EEOC’s regulatory definition unless it is “arbitrary, capricious, or mani- festly contrary to the statute.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). However, although we give great deference to the EEOC’s interpretation of the ADA found in the regulations promulgated under the express authority of Congress and the ADA itself, we do not do the same for inter- pretative guidance promulgated under the Administrative Pro- cedure Act. See Headrick v. Rockwell Int'l Corp., 24 F.3d 1272, 1282 (10th Cir.1994) (no special deference due to Department of Labor comment, which is a “purely interpretive rule’) (citing Chrysler Corp. v. Brown, 441 U.S. 281, 301- 04, 99 S.Ct. 1705, 1717-19, 60 L.Ed.2d 208 (1979) (explaining distinction between interpretative rules and substantive or legislative rules)). Hence, while the EEOC’s Interpretive Guidance may be entitled to some consideration in our analysis, it does not carry the force of law and is not entitled to any special deference under Chevron. Accordingly, we must determine whether Plaintiffs’ vision makes worse or diminishes in a material or significant respect any of the enumerated body systems. See 29 C.E.R. § 1630.2(h). We will evaluate Plaintiffs’ vision in the uncorrected state, with- out the benefit of mitigating or corrective measures, because the EEOC’s Interpretive Guidance is reasonable and consistent with the statutory mandates themselves. The fact that a disorder or condition may be mitigated or correctable does not affect the underlying nature of the disorder or condition. If the underlying disorder or condition makes worse or diminishes in a material respect any of the enumerated body systems of the individual, then it should be considered an “impairment,” regardless of whether the individual compensates for this worsening or dimin- ishment by corrective measures. See Roth v. Lutheran Gen. Hosp., A-10 57 F.3d 1446, 1454 (7th Cir.1995) (concluding impairment deter- mination made without regard to mitigating measures). In addition, “[i]t is important to distinguish between condi- tions that are impairments and physical, psychological, environ- mental, cultural and economic characteristics that are not impairments.” 29 C.F.R. § 1630, App. S 1630.2(h) para. 3. Hence, impairment does not include: physical characteristics such as eye color, hair color, left-handedness, height, weight, or muscle tone that are within the “normal” range and are not the result of a physiological disorder; characteristic predisposition to illness or disease; pregnancy; common personality traits such as poor judg- ment or quick temper where these are not the symptoms of a mental or psychological disorder; or environmental, cultural or economic disadvantages such as poverty, lack of education or a prison record. Jd. See Andrews v. Ohio, 104 F.3d 803, 810 (6th Cir.1997) (holding physical characteristics of excessive weight and lack of cardio-respiratory endurance and strength not impairments under the ADA); Daley v. Koch, 892 F.2d 212, 215 (2nd Cir.1989) (holding in Rehabilitation Act case that personal- ity traits of “poor judgment, irresponsible behavior and poor impulse control” could be described as commonplace and “in no way r{ose] to the level of an impairment”); Tudyman v. United Airlines, 608 F.Supp. 739, 746 (C.D.Cal.1984) (finding body builder’s “unique musculoskelital [sic] system and body composi- tion” not an impairment because it is not the result of a “physio- logical disorder [ ],” “cosmetic disfigurement,” or “anatomical loss”); Trembczsynski v. City of Calumet City, No. 87-C-0961, 1987 WL 16604 (N.D.IIl. Aug.31, 1987) (“Being slightly myopic [20/40 uncorrected vision] is a physical characteristic, not... an ‘impairment’ as contemplated by the [Rehabilitation] Act.”). Compare Cook v. Rhode Island, Dep’t of Mental Health, Retarda- tion, & Hosps., 10 F.3d 17, 23 (1st Cir.1993) (concluding “morbid obesity” may be physical impairment). them from engaging in normal eve iviti watchi nd tyday activities, such as, driv- ing, television, and shopping. After careful considera- A-12 Plaintiffs must also establish that their physical impairment, their vision, “substantially limits one or more of the[ir] major life activities.” See 42 U.S.C. § 12102(2)(A). The ADA does not define either “substantially limits” or “major life activity.” Therefore, we are again confronted with questions of statutory interpretation. We begin our analysis with the term “major life activity.” While the statute itself does not define a “major life activity,” the ADA regulations adopt the definition found in the Rehabilitation Act regulations, 34 C.F.R. § 104. Bolton, 36 F.3d at 942. As defined, a “major life activity” includes, but is not limited to, “functions such as caring for oneself, performing manual and working.” 29 C.F.R. § 1630.2(i). See MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1444 (10th Cir.1996) (adopting regula- tion’s definition of “major life activities”) (quoting 29 C.FR. § 1630.2(i)); Lowe, 87 F.3d at 1173 (including sitting, standing, lifting and reaching from 29 C.F.R. § 1630, App. § 1630.2(i)). In their Amended Complaint, Plaintiffs alleged they are substantially limited in the major life activity of seeing. Inasmuch as seeing is expressly included in the EEOC’s definition of major life activities, which has been previously adopted by this court, we do not decide what other activities may qualify and we now turn to consider whether Plaintiffs’ physical impairment “sub- stantially limits” their major life activity of seeing. Pursuant to the ADA regulations, in order for a physical or mental impairment to be “substantially limiting,” the individual must be: (i) Unable to perform a major life activity that the average person in the general population can perform, or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or CER. S$ 1630.2¢02) See MacDonald, 94 F Me as qucting 29C.ER.S Sao Lowe, 87 F3d at 1173 Ai evn cared st manner, or duration of their ability to see as com- into con esneies ao ay tog chm _ eration the three listed factors. See 29 yo oh 630.2(j)(1)(i) and (ii). Plaintiffs have made no allega- coed Wik Peet & unable to see [FNS] Hence, we are conce tiffs’ vision as compared to the vision of the average person in the general population. ee ee ee ithout their vision impairment withou respect to these mitigating mea- sures. Plaintiffs rely on the EEOC’s Interpretive Guidance A-14 ;, , eo derermination of 1630.2(j), which provides that [t}he termination Or eae ividual is substantially limited in a major life ingly, Plaintiffs argue that they are ae of rected vision substantially limits their major life activi seeing. | FN6. On appeal, we do not consider the effects, if any, —— surgery, such as radial keratotomy, may have on the “ose ncy or long term impact of Plaintiffs’ vision. However, we a meaye fal that as technology advances so must our conside these questions. ivity. United argues that to evaluate whether an individual pope atrar a without regard to mitigating OF corrective mea , Interpretive Guidance is correct © disability inquiries Heol be made without regard to mitigating or corrective mea- as being in direct conflict with the statutory language requiring a ; ee earl 624, 627 (8th | F.3d 624, Doane v. City of Omaha, 115 3d 62: pat. (stating “analysis of whether [plaintiff] is disabled does A-15 not include consideration of mitigating measures”); Har- ris v. H & W Contracting Co., 102 F.3d 516, 520-21 (11th Cir.1996) (holding EEOC’s interpretation is consistent with the ADA’s legislative history, thus, an individual's disability must be assessed without regard to mitigating measures); Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.1996) (stating deter- mination made without regard to mitigating measures without discussion or application), cert. denied, — U.S. —, 117 S.Ct. 1349, 137 L.Ed.2d 506 (1997); Fallacaro v. Richardson, 965 F.Supp. 87, 93 (D.D.C.1997) (“This Court finds that the EEOC’s no mitigating measures’ interpretation is eminently reasonable, consistent with the language and purpose of the Rehabilitation Act, and supported by the legislative history of the ADA.”); Wilson v. Pennsylvania State Police Dep't, 964 F.Supp. 898, 902-907 (E.D.Pa.1997) (expressly adopting EEOC guidance); Sarsycki v. United Parcel Serv., 862 F.Supp. 336, 340 (W.D.Okla.1994) (relying on EEOC interpretation as authorita- tive without discussion). FN8. See Gilday v. Mecosta County, 124 F.3d 760, 767-68 (6th Cir.1997) (holding EEOC’s interpretive guidance in conflict with statutory language and disability determinations should be made taking into consideration any mitigating measures) (2-1 deci- sion); Cline v. Fort Howard Corp., 963 F.Supp. 1075, 1081 n. 6 (E.D.Okla.1997) (recognizing split of authority and determining that “the better reasoned approach in the context of vision is one which evaluates the limitation with regard to the use and effec- tiveness of corrective devises”); Gaddy v. Four B Corp., 953 F.Supp. 331, 337 (D.Kan.1997) (“EEOC Interpretive Guideline § 1630.2(j)’s pre-medicated perspective is in direct conflict with the ADA’s express statutory language . . . ”); Moore v. City of Overland Park, 950 F.Supp. 1081, 1088 (D.Kan.1996) (same); Murphy v. United Parcel Serv., Inc., 946 F.Supp. 872, 881 (D.Kan.1996) (rejecting “without” portion of § 1630.2(j) because “plain language of the ADA conflicts with the EEOC’s Interpretive Guidance”); Schluter v. Industrial Coils, Inc., 928 F.Supp. 1437, 1445 (W.D.Wis.1996) (“EEOC’s interpretation is in direct conflict with the language of the statute that requires A-16 intiffs i cases to show that an impairment ‘substantially a aon nee Coghlan v. HJ. Heinz Co., 851 F.Supp. 808, 813 (N.D.Texas 1994) (concluding “EEOC interpretation requires that one not having a limitation be considered as oe set anctSer abe Esse emer pe ial limitation’); 1 v. : en reg F.3d 187, 191-192 n. 3 (Sth Cir.1996) — “had Congress intended that substantial limitation be . a mined without regard to mitigating measures, It would “om provided for coverage under § 12102(2)(A) for impairments ~ have the potential to substantially limit a major life pm Me Chandler v. City of Dallas, 2 F.3d 1385, 1390 (Sth Cir.1993) C : person is not handicapped if his vision can be correcte ~ 20/200.”), cert. denied, 511 U.S. 1011, 114S.Ct. 1386, aaa 61 (1994); Sweet v. Electronic Data Sys., Inc., No. 95-Civ.- . 1996 WL 204471, at *5 (S.D.N.Y.1996) (visual my nc 20/20 in one eye and correctable to 20/80 in other eye oe qualify as a “disability” because it does not oon ocenay ey ability to participate in any major life activity); Deckert J ~ Ae No. 93-1295, 1995 WL 580074 (D.Kan. Sept. 6, n (rejecting EEOC interpretation), aff'd on other grounds, > 1 F.3d 669 (Table) (10th Cir.1996). joi i jected this portion We join those courts which have rejecte of § 1630.24) of the EEOC’s Interpretive Guidance. We = that this portion of the EEOC’s Interpretive Guidance is it direct conflict with the plain language of the ADA. The determi- nation of whether an individual’s impairment substantially wows a major life activity should take into consideration mitigating ¢ corrective measures utilized by the individual. In making disabil i ity determinations, we are concerned with whether the at ment affects the individual in fact, not whether it wou hypothetically affect the individual without the use of corrective measures. 7 ag i ion of the EEOC’s Interpretive Guidance is no only = de conflict with the statute, but is also comer d inconsistent with other portions. In discussing “substanti ly A-17 limit” generally, the Interpretive Guidance states: Many impair- ments do not impact an individual's life to the degree that they constitute disabling impairments. An impairment rises to the level of disability if the impairment substantially limits one or more of the individual’s major life activities . . . The ADA and this part, like the Rehabilitation Act of 1973, do not attempt a “laundry list” of impairments that are “disabili- ties.” The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impair- ment the person has, but rather on the effect of that impairment on the life of the individual. Some impairments may be disabling for particular individuals but not for others, depending on the Stage of the disease-or disorder, the presence of other impair- ments that combine to make the impairment disabling or any number of other factors. 29 CER. § 1630, App. § 1630.2(j) para 1-2 (emphasis added). Thus, the EEOC recognized it is the actual effect on the individual's life that is important in deter- mining whether an individual is disabled under the ADA. Furthermore, in discussing whether an individual is dis- abled under the “regarded as” prong of the ADA, 42 U.S.C. § 12102(2)(C), because the employer “regards” the indi- vidual as having a substantially limiting impairment when in fact the individual's impairment is not substantially limiting, the Interpretive Guidance uses the example of “an employee [who] has controlled high blood pressure that is not substantially limit- ing.” Id. at § 1630.2(1) para. 6 (emphasis added). Under this example, the employee is not actually disabled because in the controlled state the impairment does not “substantially limit” a major life activity. The employee’s controlled high blood pres- sure does not affect, in fact, the ability to perform a major life activity. Accordingly, to state a prima facie case and survive United’s motion to dismiss, Plaintiffs’ vision in its corrected state must “substantially limit” their major life activity of seeing. Plaintiffs cannot make this showing. It is undisputed that Plain- tiffs’ corrected vision is “20/20 or better.” Thus, while Plaintiffs’ A-18 uncorrected vision would undoubtedly “*903 substantially limit” their major life activity of seeing, this is a hypothetical situation. In fact, Plaintiffs do not limit their normal daily activities to those that could be performed with their uncorrected vision. Plaintiffs admit that with their corrective measures they “func- tion identically to individuals without a similar impairment.” Plaintiffs merely don their eye glasses (or contact lenses) and go about all their normal daily activities in the same or similar condition, manner, or duration as the average person in the general population. Hence, Plaintiffs can prove no set of facts upon which relief may be granted on this claim. Plaintiffs cannot have it both ways. They are either disabled because their uncor- rected vision substantially restricts their major live activity of seeing and, thus, they are not qualified individuals for a pilot position with United, or they are qualified for the position because their vision is correctable and does not substantially limit their major life activity of seeing. See Murphy v. United Parcel Serv., Inc., 946 F.Supp. 872, 878 (D.Kan.1996) (defendant “is trying to have it both ways” by claiming he is disabled due to high blood pressure, but that it is controlled sufficiently that he can perform the job). Il. 42 U.S.C. $ 12102(2)(C)—Regarded As Disabled Subparagraph (C) defines a “disability,” as “being regarded as having” a physical or mental impairment that substantially limits one or more of the major life activities of the individual. 42 U.S.C. § 12102(2)(C). The regulations provide three ways an individual is “regarded as” being disabled: (1) the individual: “{hjas a physical or mental impairment that does not substan- tially limit major life activities but is treated . . . as constituting such limitation;” (2) the individual “[h]as a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment;” or (3) the individual “{h]as none of the impairments defined in [29 C.FR. § 1630.2(h)(1) and (2) ] but is treated . . . as having a substantially limiting impairment.” 29 C.F.R. § 1630.2(1)(1)-(3). See MacDonald, 94 F.3d at 1444 (quoting and adopting 29 C.ER. A-19 when other people treat that vhen other p tre person as having a substantj limiting ‘mpairment,’” regardless of whether the individual om impairments effect upon the attitudes of ! others. Jd. See Gord v. E.L. Hamm & Assocs., Inc., 100 F3d 907, 913 (11th Cir. 1996), In this case Plaintiffs contend Unj » Flaint United “regards” em in the major life activity of working. [FN] Pees — United perceives them as unfit to work as global pilots because: (a) United’s policy is not limited to certain FN9. In their Openin i inti & Brief, Plaintiffs assert that “Unit possi [them] “ substantially impaired in the major life cota . g, working, or both.” (Plaintiffs-Appellants’ Opening A-20 United responds that it did not regard them as loxce United argues that it did not regard rn ay orig nero limited in the major life — . penne aaa.” Uaied ment did not preclude Plaintt s from ft ney ane se that *904 Plaintiffs merely al o ee abaiael safety requirements of the positions they s {ought}.” “ ae An employer does not necessarily ai naan aur bs tially limited in the major life activi ) aeaail it sallovet that individual is incapable of performing 4 regard the employee as having a substantially ego oe os ment indicates oe aig rr Bes geet 4 et ciaee i imited in the a when pena at eer vast impairment OF perceived rary ent foreclosing generally the type of employment ae om & re ». Babcock & Wilcox Co., 117 F3d 800, 806 (St , Ai ond Hileman v. City of Dallas, Tex., 115 F.3d 352, 354 (Sth Cir.19%") (“An impairment must substantially limit ye ts pH 2 & A eral, not merely the particular job that the plaintiff may hold.”). on é, ee , tially limits’ the major life activity of working, an — ~ show significant{ ] restrict[ion] oo agente pr won pveure lass of jobs or a broad range of jobs In se pad en person having comet naecing 29, CER. d abilities.” Bolton, 3d a : § 1630.26)(3)(i). See MacDonald, 94 F.3d at 1444 (quoting Bol ithi i from which abilities, within that geographical area, ! h on piv is also disqualified because of the yarn yd CER. § 1630.2(j)(3)(ii)(B). See Siemon, sonra A we mr . ing 29 C.FR. § 1630.2(j)(3)(ii)(B)); Mac fnew 1444-45 (same). A “broad range of jobs in various ¢ A-21 defined as “[t}he job from which the individual has been disqual- ified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abili- ties, within that geographical area, from which the individual is also disqualified because of the impairment.” 29 C.F.R. § 1630.2(j)(ii)(C). See Siemon, 117 F.3d at 1176 (quoting 29 C.F.R. § 1630.2(j)(3)(ii)(C)); MacDonald, 94 F.3d at 1445 (same). However, “[t}he inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” 29 C.F.R. § 1630.2(j)(3)(i). See Siemon, 117 F.3d at 1176 (quoting 29 C.FR. § 1630.2(j)(3)(i)); MacDonald, 94 F.3d at 1445 (“If neither of these definitions is met, and an individual instead shows only that he is unable ‘to perform a single, particular job,’ . . . the regulations and case law make clear that he has not shown that he is substantial[ly] limit[ed] in the major life activity of working.””’); Wooten, 58 F.3d at 386 (holding that under the ADA, “‘working’ does not mean working at a particular job of that person’s choice”’); Bolton, 36 F.3d at 942 (quoting 29 C.F.R. § 1630.2(j)(3)(i)); Welsh, 977 F.2d at 1419 (holding that “an impairment that an employer perceives as limiting an individual’s ability to perform only one job is not a handicap under the Act”). Therefore, in order to establish a disability under the “regarded as” prong of the ADA with respect to the major life activity of working, an individual must show that the employer regarded him or her as being substantially limited in performing either a class of jobs or a broad range of jobs in various classes. In this case, we are concerned with whether Plaintiffs can present any set of facts based on their Amended Complaint establishing that United treated Plaintiffs as having a substantially limiting impairment. To do so, Plaintiffs must establish United’s disquali- fication of them from all pilot positions as a significant restric- tion on their ability to perform a class of jobs. [FN10] See Foreman, 117 F.3d at 806 (“the question is whether Foreman was treated by [defendants] as having an impairment that substan- tially limits a major life activity”); MacDonald, 94 F.3d at 1445 (concluding that to establish a disability plaintiff must show A-22 defendant regarded him as being substantially limited in per- forming a class of jobs). We hold that Plaintiffs cannot make this showing. Taking all Plaintiffs’ allegations as true, Plaintiffs can establish only that their physical impairment, their uncorrected vision, prevents them from working for United as a pilot; a single, particular job. They cannot show disqualification from a “class of jobs.” FN10. At oral argument, United stated that Plaintiffs were not disqualified from its non-passenger pilot positions. However, for the purposes of this appeal, we will assume Plaintiffs were dis- qualified from “all pilot positions” as they alleged in their Amended Complaint. We are concerned with whether United regards Plaintiffs as “disabled,” not whether the airline industry as a whole regards individuals with uncorrected vision of 20/100 or worse as “sub- stantially limited” in a major life activity. It is the perception of the employer in the case, not the perceptions or practices of others in the industry, that matters. See Cook, 10 F.3d at 25-26 (using example demonstrating focus is on employer in question not other employers in the industry). However, we do examine the airline industry to assist in determining whether Plaintiffs’ impairment substantially limits their employment generally in a “class of jobs.” The “class of jobs” Plaintiffs argue United disqualifies them from is that of “global airline pilot.” However, this descrip- tion is too narrow to constitute “class of jobs.” A “class of jobs” consists of jobs that utilize “similar training, knowledge, skills or abilities.” 29 C.ER. § 1630, App. § 1630.2(j)(3)(ii)(B). As Plain- tiffs’ point out in their Amended Complaint, “[t}here is nothing unique about the job activities of United pilots that distinguishes United’s requirements from other airlines.” (Plaintiffs-Appei- lants’ Appendix at 10, P 38(g)). Thus, the “class of jobs” to which Plaintiffs must compare themselves is that of all pilot positions at all airlines, because they all require the same or similar training, knowledge, skills, or abilities. This class would include, but not A-23 be limited to, all pilot positi . ot positions at global airlines, nati ir- ae airlines, and phar nrendgeorene See .g. McKay v. Toyota Motor Mfg., US.A.. Inc., 110 | Ay ae eater earn diartn eee fate ssue included all manuf jobs not only narrow range of assembly li ete. ne ar line manuiacturing j a repetitive motion or frequent lifting of ce em are ema 34 F.3d at 1445 (“[T]axiing aircraft is ‘a class of jobs,’ nor ‘a broad range of jobs in various we a ae ‘a Single, particular job.”); Wooten, 58 F.3d concluding plaintiffs’ carpal tun ! ' — vent[ed] him from performin hy yal 0a vent| g a narrow range of ve g a nar ge of meatpackin ~ : ft benated v, Ingalls Shipbuilding, 53 F3d 723, 107 (Sth z ee fe se impairment did not prevent plaintiff from work- ; soahies . ~" ne pre a only those requiring substan- ; Welsh, .2d at 1419 (“an impai employer Perceives as limiting an individual's ability i os to only one job [firefighter] is not a handicap”’). re. For example, “an individual wh a . \ O cannot be a commerci ae because of a@ minor vision impairment, but “ep se nen te ee eee or a pilot for a courier service # no bstantially limited in the major life activi of sone foes ra : <8 App. § ——e para. 15. With this example, the | hu an individual who is “not substan- tially limited in the ability to eure perform any other major life activi and, with regard to working, [i ta rnd g, [is] only unable to perform ei particular specialized job or a narrow of; ree | range of jobs.” Jd. S§ mea mao Pa nd 2 CE. RAIN) a Welsh); , 977 F. inability “to perform onl ody epee naa — the [Rehabilitation] Act”) Daley 892 : ing ared unsuitable for the articul D0sI tion of police officer is not a substantial limitati : ajor life on of p ffi limitation of a major lif a2tivity.”); Forrisi, 794 F.2d at 934 (“ane aha i ‘ f mployer Coes not - pet regard an employee as handicapped simply by finding the ye ay of satisfying the singular demands of a j 4 n, 608 F.Supp. at 746 (concludi P : ) : clud i poe to hire someone for a single job does not in pr of itself itute perceiving the [person] as a handicapped individual”) A-24 Adopting Plaintiffs’ reasoning would imply that anyone who failed to obtain a single job because of a single requirement of employment would become a “disabled” individual because the employer would thus be regarding the applicant’s failure as substantially limiting in the major life activity of working. Formisi, 794 F.2d at 935. See Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir.1996) (stating that “otherwise . . . anyone[ ] could establish a prima facie discrimination case merely by demonstrating some adverse action against the individual and that the employer was aware that the employee’s characteristic placed him or her in [a protected] group”). This reading would stand the Act on its head. This provision of the ADA seeks to remedy perceived disabilities that, like actual disabilities, extend beyond the iso- lated mismatch of employer and employee. We agree with the court’s sentiments expressed in > Hileman, “[w]e refuse to con- strue the . . . Act as a handout to those who are in fact capable of working in substantially similar jobs . . . ” Hileman, 115 F.3d at 354 (discussing Rehabilitation Act). Finally, we note that while the FAA may not believe there is a safety concern regarding pilots with uncorrected vision of 20/100 or worse, that alone does not prevent United from presenting evidence to the contrary, were it necessary to refute a prima facie case of discrimination. As long as United does not practice illegal discrimination, we discern no reason why United cannot maintain a higher standard for safety than the FAA. It must be remembered that the FAA sets the minimum criteria for a pilot’s license, not the maximum. Conclusion We hold that Plaintiffs’ Amended Complaint alleged suffi- cient facts to support a conclusion that their uncorrected vision constituted a physical impairment under the ADA. However, for the foregoing reasons, we hold that Plaintiffs cannot present any set of facts showing their vision, when viewed with mitigating and corrective measures, substantially limits the major life activity of seeing. Nor can Plaintiffs show United regarded them as sub- stantially limited in a major life activity of working by finding Plaintiffs unfit for its commercial pilot positions. Therefore, we A-25 affirm pep ata court’s dismissal of Plaintiffs’ ADA Claims for ate a claim upon which relief may be granted. AFFIRMED. A-26 United States Court of Appeals for the Tenth Circuit KAREN SUTTON AND KIMBERLY HINTON, Vv. Plaintiffs-Appellants, UNITED AIR LINES, INC., Defendant-Appellee. Case No. 96-1481. ORDER Filed March 3, 1998. Before BRORBY, BARRETT, AND McKay, Circuit Judges. Appellants’ petition for rehearing is denied by the panel that rendered the decision. The suggestion for rehearing en banc was transmitted to all of the judges of the court who are in regular active service as required by Fed. R. App. P. 35. As no member of the panel and no judge in regular active service on the court requested that the court be polled, the suggestion is also denied. Entered for the Court PATRICK FISHER, Clerk of the Court by: Deputy Clerk A-27 KAREN SUTTON AND KIMBERLY HINTON, v. Plaintiffs, UNITED AIRLINES, INC., Defendant. Civ. A. No. 96-S-121. United States District Court, D. Colorado Aug. 28, 1996. Pryer & Pascoe, PC., Denver, for —_— es enon Lisa Hogan, Brownstei . ver, for Defendant." Farber & Strickland, PC., Den. MEMORANDUM OPINION AND ORDER SPARR, District Judge. dans MATTER comes tore te cout onthe Dele. Fed.R.Civ.P. 12(b)(6) (filed ursuant to , ' 29, 1996). reviewed the motion, the tenn 996). The court has In reviewing 4 motion to dismi ismiss Fed.R.Civ.P. 12(b)(6), a district court’s role is to aeons the hanes feasibility of the complaint; it is not to weigh the i which reference, and matters of which judicial notice may be taken. Samuels gt Transp. Local 504, 992 F.2d 12, 15 (2d Cir.1993) Applying Fed.R.Civ.P. 12(b)(6), a court should not dismiss A-28 cause of action for failure to state a claim unless the ton determines that the plaintiff can prove no set don bm om entitle it to relief, even when all well- pleaded allega oe complaint are accepted as true and construed in ty = pa ge ae co Co. ma ty 528-29 (10th 1974); Mock v. T.G. : >» . -g go Tri-Crown, Inc. v. American it on A oe. 908 F.2d 578, $82 (10th Cir 1980): Gri 493 US. 820 (1988). ‘2d 1147, 1148 (1 ir.), cert. ; S. rnin the plaintiff can offer evide nce teh. an yn i claim for relief, a motion to poe pager a , 599 F.Supp. 1142, 1145 (D.Colo.1984). > The Plaintiffs’ Claim for violation of the Americans with Disabilities Act, 42 U.S.C 12101 et seq., (“the ADA’). Plaintiffs are twin hg em currently employed as commercial airline pilots. Plain 4 applied to Defendant United for employment as ee boa : i andi the same image as - aired individual standing 20 feet away sees , rege nse person sees from 400 feet. an ed visual «90 ity of 20/200 or less constitutes legal blindness . or sect Supplemental Security “Insurance disability classi (Amended Complaint paragraphs 37. b. and c.) 3. Statutory Framework The ADA forbids discrimination: against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a) (1996). In order to state a claim under the ADA, a plaintiff must establish: (1) that he is a disabled person within the meaning of the ADA; (2) that he is qualified, that is, with or without reasonable accommodation (which he must describe), he is able to perform the essential functions of the job; and (3) that the employer terminated him because of his disabil- ity. Milton v. Scrivner, Inc., 53 F.3d 1118, 1123 (10th Cir.1995), quoting White v. York Int'l Corp., 45 F3d 357, 360-61 (10th Cir.1995). [FN2] FN2. The language adopted in the ADA tracks that of the Reha- bilitation Act of 1973, 29 U.S.C. S$ 701 et seq. The ADA expressly requires its provisions to be interpreted in a way that “prevents imposition of inconsistent or conflicting standards for the same requirements” under the two statutes. 42 U.S.C. § 12117(b). Congress intended relevant caselaw developed under the Reha- bilitation Act to be generally applicable to analogous inquiries under the ADA. White, 45 F.3d at 360; Bolton v. Scrivener, Inc. , 36 F.3d 939, 942-43 (10th Cir.1994), cert. denied, 115 S.Ct. 1104 (1995); House Report No. 101-485(I) p. 50, reprinted in 1990 U.S.C.C.AN, 322. The court must begin by determining whether Plaintiffs are disabled as defined by the ADA. The ADA defines “disability” using three alternatives: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2) (1996). See also Bolton, 36 F.3d at 942. Plaintiffs argue that they are disabled and addition \y that A-30 ing di . United argues that the ted regarded them as being disabled. Unite paren os not disabled because they have no impairment which substantially limits any major life activities. ao = they are, and United regards them as being, substantially pron in the major life activity of seeing (Amended ey RE = graphs 37, 38; Plaintiffs’ opposition brief pp. 2, 3, 6 n. 2, 12). Although the ADA does not define “physical sy emery “substantially limits,” “major life activities,” or being pa as having such an impairment,” the regulations eos by ay ee yn ee ADA provide sign ance. son rece Feat he , 85 F.3d 187, 190 (Sth Cir.1996) (citation omitted). The regulations define “physical impairment” to include: 3 a iological disorder, or condition, cosmetic figurement, or anatomical ss affecting one or more of the following body systems: neurological, —. etal, special sense organs, respiratory (including speec organs), cardiovascular, reproductive, spate genito-urinary, hemic and lymphatic, skin, an endocrine; .. . 29 CER. § 1630.2(h)(1) (1996). “Major life activities” means: i i rforming man- functions such as caring for oneself, per ual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. * i tions provides C.ER. § 1630.2(i). The appendix to the regulations pt Be “other major life activities include, but are not limited to, i ing, lifti ing.” ER. Pt. 1630, Appendix itting, standing, lifting, reaching. 29C a Past rors tran Guidance to Title I of the ADA, § 1630.2(i) (1996). The term “substantially limited” means: jor li ivity that the aver- i) Unable to perform a major life activity t | Ms. Bontre in the general population can perform, or A-31 (ii) Significantly restricted as to the condition, manner, or duration under which an individual can perform a partic- ular major life activity as compared to the condition, man- ner, Or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1). Whether an individual is substantially limited in a major life activity is determined in light of: (i) The nature and severity of the impairment; (ii) The duration or expected duration of the impair- ment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. 29 CER. § 1630.2(j)(2). “Being regarded as having such an impairment means: (1) Has a physical or mental impairment that does not sub- stantially limit major life activities but is treated by a covered entity as constituting such limitation; (2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward impairment; or (3) Has none of the impairments defined in paragraphs (h)(1) or (2) of this section but is treated by a covered entity as having substantially limiting impairment. 29 C.ER. § 1630.2(1). 4. Analysis The issue is whether the Plaintiffs’ impairment substantially limits any of their major life activities or whether United regards the Plaintiffs as having such an impairment, such that they are disabled as defined by the ADA. The court must consider the extent to which their impairment restricts their specific activities. A-32 EEOC Compliance Manual § 902.4(a) (1 195). Obviously, the Plaintiffs’ ability to see without correction is affected, but, as reflected in the statute and regulations, far more is required to trigger coverage under 42 U.S.C. § 12102(2)(A) and (C). First. Plaintiffs do not claim any restrictions on their activi- ties other than their inability to obtain employment as passenger airline pilots for United. Plaintiffs do not allege that they have any medical restrictions. Plaintiffs do not allege any activity that they are unable to pe: form that the average person in the general population can perform, nor do they state that they suffer from any significant restrictions in any activities as compared to the average person. See 29 C.F.R. § 1630.2(1)(i) and (ii). Indeed, they are currently employed as commercial airline pilots. Plaintiffs concede that, with their corrective lenses, they are able to func- tion identically to individuals without a similar impairment. An individual is not substantially limited in a major life activity if the limitation, when viewed in light of the factors in 29 C.FR. § 1630.2(j)(2), does not amount to a significant restriction when compared with the abilities of the average person. 29 CER. Pt. 1630 App. § 1630.2()). Second, numerous federal courts have concluded that the need for corrective eyewear is commonplace and does not sub- stantially limit major life activities. Roth v. Lutheran Gen’ Hosp., 57 F3d 1446, 1454-56 (7th Cir.1995) (doctor with strabismus (crossed eyes) was not disabled because he could read, write, lecture, and successfully complete graduate school), Chandler v. City of Dallas,2 F.3d 1385, 1390 (Sth Cir.), reh’g denied, 9 F.3d 105 (1993), cert. denied, 114 S.Ct. 1386 (1994) (vision correctable to 20/200 is not a “handicap” under the Rehabilitation Act); Jasany v. United States Postal Serv., 755 F.2d 1244, 1248-50 (6th Cir.1985) (plaintiff with crossed eyes who had difficulty operating mail- sorting machine but who otherwise was not limited in work or recreation was not “handicapped” under the Rehabilitation Act); Venclauskas v. Connecticut Dept. of Pub. Safety, 921 F.Supp. 78, 80-82 (D.Conn.1995) (applicant for state police trooper trainee who was rejected for failure to meet unaided visual acuity A-33 standard failed to state a claim under the ADA or the Rehabilita- meen Joyce v. Suffolk County, 911 F.Supp. 92, 96 (E.D.New Pavey ) (candidate for county police officer position who ‘ed to meet visual acuity standard because his uncorrected re in each eye was 20/200 but his corrected vision in each eye as 20/20 was not ‘ handicapped” or “disabled” under the ADA or the Rehabilitation Act); Walker v. Aberdeen-Monroe Co Hosp., 838 F.Supp. 285, 288 (N.D.Miss.1993) (a person aes vision is corrected to 20/30 is not “handicapped” within th Pasion, “ get ape geen Act); Sweet v. Electronic Data ems, Inc., : 204471, 5 A.D.Cases 853 (S. ao 26, 1996) (plaintiff's diminished vision in one fos did not = ne a disability’ because it did not substantially limit his ty to participate in any major life activity). Even accepting all of the Plaintiffs’ allegations as true, Plaintiffs have not une a claim that the iallv limited i a ae off alan y are substantially limited in the major life activity . Third, the determination of whether a person’s impai . ior aan ee mpiag! first soa major life oaieie } is clear tha ‘si substantially limits a major life activity At sans iiided then ae not determine whether the impairment substantially on rbd seme s ability to work. On the other hand, if an ges oe not substantially limit any of the other major ‘ities, then one must determine whether the person is substantially limited in working. EEOC Compliance Manual § 902.4(c). With respect to the major li oe r lif term “substantially limits” ane ile activity of working, the significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. pts § 1630.2(j)(3) (1996) (emphasis added). The major life activity of working does not necessarily mean working at the job A-34 i iting Welsh v. City of f one’s choice. Bolton, 36 F.3d at 942, citing Tulsa 977 F.2d 1415 (10th Cir.1992); E.E. Black, Lid. v. ee 497 ESupp. 1088, 1099 (D.Hawaii 1980). In addition to the fac- tors listed in 29 C.ER. § 1630.2(j)(2), the following factors may be considered in determining whether an individual is substan- tially limited in the major life activity of “working: (A) The geographical area to which the individual has reasonable access; (B) The job from which the individual has been disqual- ified because of an impairment, and the number and ve of jobs utilizing similar training, knowledge, skills or ~ r ties, within that geographical area, from which the indivi ‘ ual is also disqualified because of the impairment (class 0 jobs); and/or 3 (C) The job from which the individual has been disqual- ified because of an impairment, and the number and — of other jobs not utilizing similar training, —. ~ or abilities, within that geographical area, from whic : individual is also disqualified because of the impairmen (broad range of jobs in various classes). 29 CER. § 1630.2(j)(3)(ii) (1996). : The Plaintiffs’ entire complaint is based on their pon gn obtain the single, particular job of passenger airline cop hem United. Plaintiffs are currently employed as comm we po oa pilots, jobs that utilize training, knowledge, skills, an itie similar to the job of passenger airline pilot. Under the meron factors to be considered by the court, it is now oe we enmagere : i ti imi cannot state a claim that they are substant major life activity of working. The Plaintiffs’ common moderate vision impairment, although certainly an undesirable pend nience, does not substantially limit their ability to work within the meaning of the ADA. A-35 Plaintiffs argue that the ADA regulations require that the existence of a disability be determined without regard to the effects of mitigating measures such as drugs or prosthesis, citing 29 C.ER. Pt. 1630, App. § 1630.2(h). The court recognizes that App. § 1630.2(j) provides that “[the determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating mea- sures such as medicines, or assistive or prosthetic devices.” 29 C.ER. Pt. 1630, App. § 1630.2(j); EEOC Compliance Manual § 902.4(c)(1). However, the part of the EEOC’s interpretation of the regulations that Plaintiffs rely upon addresses impairment, not disability, stating that the existence of an impairment is to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices. Even if the Plain- tiffs’ uncorrected vision would be considered an impairment, a physical impairment, standing alone, is not necessarily a disabil- ity as contemplated by the ADA because the statute requires an impairment that substantially limits one or more of the major life activities. Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (Sth Cir.1995). If the impairment does not significantly restrict a major life activity, then the impairment is not a disability. EEOC Compliance Manual § 902.4(c)(1). Fourth, it is apparent that the ADA was intended to protect only a limited class of persons; specifically, individuals who suffer from impairments significantly more severe than those encoun- tered by the average person in everyday life, not people who suffer from slight shortcomings that are both minor and widely shared. Furrisi v. Bowen, 794 F.2d 931, 934 (4th Cir.1986); Buko v. American Medical Laboratories, Inc., 830 F.Supp. 899, 904 (E.D.Va.1993), affd, 28 F3d 1208 (4th Cir.1994). An excerpt from the legislative history of the ADA reveals that the type of visual impairment contemplated by the legislation is of a degree beyond that correctable by eyeglasses or contact lenses: For blind and visually-impaired persons, reasonable accommodations may include adaptive hardware and software for computers, electronics [sic] visual aids, A-36 braille devices, talking calculators, magnifiers, audio recordings and brailled material. Report No. 101-485(II) p. 64, reprinted in 1990 USCA 346. To adopt a definition of “disabled” that would include persons whose vision is correctable by eyeglasses or con- tact lenses would result in an expansion of disability protection beyond the logical scope of the ADA. Millions of Americans suffer visual impairments no less serious than those of the Plain- tiffs. Under such an expansive reading, the term ° disabled would become a meaningless phrase, subverting the policies and purposes of the ADA and distorting the class the ADA was meant to protect. Fifth, Plaintiffs cannot state a claim that United “regarded” them as being disabled. There is no support for the allegation that United, based on stereotype, myth, or unsubstantiated fears, regarded Plaintiffs as substantially impaired in the major life activity of seeing. As for the major life activity of working, the proper test for a “regarded as” claim is whether the impairment, as perceived, would affect the individual’s ability to find work across the spectrum of same or similar jobs. Muller v. Automobile Club of Southern California, 897 F.Supp. 1289, 1297 (S.D.Calif.1995) (citation omitted), Venclauskas, 1995 WL 819137 at *3-4 (citations omitted). An employer does not neces- sarily regard an employee as handicapped simply by finding the employee to be incapable of satisfying the singular demands ofa particular job. Ellison, 85 F.3d at 192, quoting Fornsi, 794 F.2d at 933-34. An employer’s belief that an employee is unable to per- form one task with an adequate safety margin does not establish per se that the employer regards the employee as having a sub- stantial limitation on the employee’s ability to work in general. Hutchinson v. United Parcel Service, Inc., 883 F.Supp. 379, 396 (N.D.lowa 1995). The statutory reference to a substantial limita- tion indicates instead that an employer regards an employee as handicapped in his or her ability to work by finding the employee’s impairment to foreclose generally the type of A-37 employment involved. Ellison, 85 F.3d at 192, quoting Forrisi, 794 F.2d at 934; EEOC Compliance Manual § 902.8(f). At most, the Plaintiffs can establish that United regarded them as unable to satisfy the requirements of a particular passen- ger airline pilot position. The Plaintiffs have had no difficulty obtaining other jobs in their field prior to this one. Plaintiffs are currently employed as commercial airline pilots. The need for corrective eyewear in no way substantially limits the Plaintiffs’ employment generally. Joyce, 911 F.Supp. at 96. Finally, the Plaintiffs indicate that United’s visual acuity standards are based on its “misunderstanding” of certain govern- ment regulations. However, the ADA does not require United to lower or effect substantial modifications of its standards to accommodate disabled persons. See Southeastern Community College v. Davis, 442 U.S. 397, 413-14 (1979). Even if the Plain- tiffs were disabled within the meaning of the statute, the ADA does not authorize the court to compel the airlines to alter the qualifications for passenger airline pilots. The court concludes that the Plaintiffs cannot state a claim that United regarded them a impaired in a way that substan- tially limits a major life activity and, therefore, cannot state a claim that they are disabled under the ADA. 5. Conclusion Even after accepting all factual allegations as true and drawing all reasonable inferences in favor of the Plaintiffs, the court concludes that the Plaintiffs cannot state a claim under the ADA. Plaintiffs do not support their claim with facts that would prove that they are disabled under the ADA, and therefore, that they are entitled to any relief under the ADA. Accordingly, IT IS ORDERED: 1. The Defendant’s Motion to Dismiss is GRANTED. 2. This civil action is DISMISSED. 3. Upon the filing of a bill of costs with the Clerk of the Court, the Defendant shall be entitled to recover from the Plain- tiffs its costs in this action. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0183%3A02. Public record. Not legal advice.