Amicus Curiae Brief — Albertson's, Inc. v. Kirkingburg

\\ No. 98-591

In the Supreme Court of the Anited States

OCTOBER TERM, 1998

ALBERTSONS, INC., PETITIONER,

Vv.

HALLIE KIRKINGBURG, RESPONDENT.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE OF THE

AMERICAN TRUCKING ASSOCIATIONS, ET AL.,

IN SUPPORT OF PETITIONER

ROBERT DIGGES JAMES D. HOLZHAUER

ATA Litigation Center Counsel of Record

2200 Mill Road TIMOTHY S. BISHOP

Alexandria, VA 22314 SUSAN E. PROVENZANO

(703) 838-1865 Mayer, Brown & Platt

190 South LaSalle Street

Chicago, IL 60603

(312) 782-0600

Counsel for Amici Curiae

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

Amici American Trucking Associations, Inc.

(“ATA”), American Moving and Storage Association

(“AMSA”), Towing & Recovery Association of America

(“TRAA”), Specialized Carriers & Rigging Association

(“SC&RA”), Truckload Carriers Association (“TCA”),

National Tank Truck Carriers, Inc. (“NTTC”), Association

of Waste Hazardous Materials Transporters (*AWHMT”),

and National Automobile Transporters Association

(“NATA”) respectfully move, pursuant to Rule 37.2 of the

Rules of this Court, for leave to file a brief amicus curiae in

support of petitioner. The consent of counsel for petitioner

has been granted; the consent of counsel for respondent has

been sought but not obtained.

ATA, a not-for profit corporation, is a trade

national trucking conferences, created to promote and protect

the interests of the trucking industry. ATA membership

includes more than 3,700 trucking companies and industry

suppliers of equipment and services. Directly and through its

affiliated organizations, ATA represents over 34,000

companies and every type and class of motor carrier

operation in the United States. ATA regularly advocates the

trucking industry’s common interests before this Court and

other courts.

AMSA is the national trade association of the moving

and storage industry. It has approximately 3,500 members

worldwide and represents the entire spectrum of the United

States domestic moving and storage industry. AMSA’s

membership includes 25 national van lines, 1,100

independent regulated carriers, 1,600 agents of van lines

(1,000 of whom are also regulated carriers), and over 500

international movers.

TRAA is a national association of more than 1,400

towing and recovery operators serving North America.

2

TRAA is charged with promoting professionalism, quality

customer service, and safety in towing operations throughout

the country.

SC&RA is a national association of motof Carriers

that transport commodities whose unusual size or weight

requires special transportation equipment. SC&RA's over

1,000 members include steel haulers, oil field equipment

transporters, crane and rigging companies, millwright

contractors, and transporters of construction and military

equipment.

TCA is a national trade association representing the

motor carrier industry’s irregular-route truckload segment

(such as dry van, refrigerated, flatbed, and dump trailers).

TCA’s more than 600 motor carrier members are domiciled

throughout the continental United States, and serve the

United States, Mexico, and Canada.

NTTC is a national trade association of 200 corporate

members specializing in transporting hazardous materials,

substances, and wastes in cargo tank trucks. Its members

operate throughout the United States, Mexico, and Canada.

AWHM'T is a national association of motor carriers

that transport hazardous waste materials, such as industrial

and radioactive wastes. Through its approximately 80

members, the AWHMT promotes professionalism and

performance standards that minimize risks to the environ-

ment, public health, and safety.

NATA represents motor carriers that transport over

95% of all new motor vehicles through either driveaway or

truckaway operations. NATA represents the joint interests

of its nineteen carrier members, and seeks continuously to

improve their quality of service, safety, and productivity.

Amici believe that their views should provide a useful

supplement to the presentations of the parties. A clear,

3

consistent interpretation of the Americans with Disabilities

Act (“ADA”) is of paramount importance to amici’s mem-

bers, who employ millions of men and women across the

country. In particular, amici’s members need guidance on

what constitutes a “disability” under the ADA. They must be

able to formulate employment standards that ensure their

employees do not pose a safety threat, but that at the same

time do not discriminate against persons with disabilities who

are truly qualified for the job. Of special concern are

members’ employment standards for over-the-road drivers,

whose fitness for employment is crucial to public safety.

The courts of appeals’ divergent approaches to the

ADA’s definition of “disability” have left the process of

setting ADA-compliant employment and safety standards

largely to guesswork. The lack of certainty and clarity in the

disability determination puts members with employees in

several circuits at a special disadvantage, since the validity

of their employment and safety standards is determined by

geographic happenstance. This is antithetical to the ADA’s

purpose, which is to set a uniform nationwide standard for

employing persons with disabilities.

Amici and their membership are committed to equal

employment opportunity and believe that discrimination in all

forms should be eliminated from the workforce. A uniform

definition of disability will help the amici, their members,

and all employers to achieve this objective.

As set forth in the accompanying brief, amici believe

that this case provides a suitable vehicle for this Court to

settle a well-established circuit split that creates considerable

difficulty for their members and for all employers.

Ee A a

4

Respectfully submitted.

ROBERT DIGGES JAMES D. HOLZHAUER

ATA Litigation Center Counsel of Record

2200 Mill Road Timothy S. BISHOP

Alexandria, VA 22314 SUSAN E. PROVENZANO

(703) 838-1865 Mayer, Brown & Platt

190 South LaSalle Street

Chicago, Illinois 60603

(312) 782-0600

i

QUESTION PRESENTED

Whether the Americans With Disabilities Act’s definition

of . “9° as a . or . . that “sub-

oes a mg hp mane mental ya carting ea

analysis of any actual, significant restrictions that result from

the impairment (as most circuits have held), or whether it is

sufficient that an impairment merely affects, but does not

significantly restrict, a major life activity (as the Ninth

Circuit held in this case).

ii

TABLE OF CONTENTS

Page

I eee ee i

INTERESTS OF THE AMICI] CURIAE .......... 1

GE cate cab ace es hudeetiees 3

INTRODUCTION AND SUMMARY OF ARGUMENT 5

PPO ee re eS 6

Il. THE NINTH CIRCUIT’S DECISION IS ER-

RONEOUS AS A MATTER OF LAW .... iI

Ill. THE ISSUE PRESENTED IS OF GREAT

PRACTICAL IMPORTANCE ......... 14

eo re re eee re ee 17

TABLE OF AUTHORITIES

Cases: Page

Arnold v. United Parcel Serv., 136 F.3d 854 (ist Cir.

D6 be Web 6bb 6 who owes SE eh ek eo 9

Aucutt v. Six Flags Over Mid-America, 85 F.3d 1311

Sn Sesh 6 s-o Fs oe Ue as Ch Bee wk 15

Bolton vy. Scrivner, Inc., 36 F.3d 939 (10th Cir. 1994) . 15

Bragdon v. Abbott, 118 S. Ct. 2196 (1998) .... 6, 10, 11

Doane v. City of Omaha, 115 F.3d 624 (8th Cir. 1997),

cert. denied, 118 S. Ct. 693 (1998) ........... 9

Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (Sth Cir.

RS SD See ere a a 15

Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986) ..... 12

Holihan v. Lucky Stores, Inc., 87 F.3d 362 (9th Cir. 1996),

cert. denied, 520 U.S. 1162 (1997) .......... 15

Homeyer v. Stanley Tulchin Assocs., 91 F.3d 959 (7th

Ee ee wml, oe eb be Eb eee 15

Joyce v. Suffolk County, 911 F. Supp. 92 (E.D.N.Y. 1996) 16

Kelly v. Drexel Univ., 94 F.3d 102 (3d Cir. 1996) .. . 8, 11

Knapp v. Northwestern Univ., 101 F.3d 473 (7th Cir.

1996), cert. denied, 117 S. Ct. 2454(1997).... 16

Murphy v. United Parcel Serv., 141 F.3d 1185 (10th

Cir. 1998), petition for cert. filed (June 9, 1998)

Ba en as a oe be 6 ob 6 0-60 10

is «ks 0.04.0 SOAKED OKs SS 8, 9, 14

iv

TABLE OF AUTHORITIES—Continued

Ryan v. Grae & Rybicki P.C., 135 F.3d 867 (2d Cir.

SOD co 49 aS 4 o's ae Ob 6 the eee Cs 7, 11

Still y. Freeport-McMoran, Inc., 120 F.3d 50 (Sth Cir.

SEP in Oe: 4 a 0-e te pees eee is tee

Sutton vy. United Air Lines, 130 F.3d 893 (10th Cir.

1997), petition for cert. filed (June 1, 1998) (No.

OP-ED.» 0 5cike se Owe b wlan tae 9, 10, 11

Swain v. Hillsborough County Sch. Bd., 146 F.3d 855

COD Ge. AEE vik hm mink t nel a ake males 9

Washington v. HCA Health Servs., 152 F.3d 464 (Sth

Coy. SN 0 k's Akix 2°08 0 ORR chi aed 10

Statutes:

ae ee a 0. nd 06 hn Ca eee aes 11

y TOE rw re sep Pe 4

a ED 3 bob whos add sear 5

BB SBA. Oe * 8 Sols ke ae Geo 645i» 5

Re Pe a eee 11

OS Tees MA 6 0c 66 6 ceo vette areas 16

i EE oa o'e 6 nha Up oe oe whe 6 16

29 C.F.R. pt. 1630.2(g) app. ............--. 12

vo

TABLE OF AUTHORITIES—Continued

29 C.F.R. pt. 1630.2) app. ............0-. 12

29 C.F.R. § 1630.2)(1Mii) .. 2... ee eee 7, 12

29 C.F.R. § 1630.2GX2)................. 7, 12

MCP RE Pe... cna ec ccc aes. 3

Miscellaneous:

2 EEOC Compliance Manual § 902.4 ........... K

136 Cong. Rec. 9072 (1990) ..........-.0-. 12

Anna P. Engh, Note, The Rehabilitation Act of 1973:

Focusing the Definition of a Handicapped Individual,

30 WM. & MARY L. REV. 149 (1988)......... 13

H.R. Rep. No. 485, Pt. I, 101st Cong., 2d Sess. (1990) . 12

S. Rep. No. 116, 101st Cong., Ist Sess. (1989) .... 12

BRIEF AMICUS CURIAE OF THE AMERICAN

TRUCKING ASSOCIATIONS, ET AL.

INTERESTS OF THE AMICI CURIAE'

As explained in the foregoing motion for leave to file

(“ATA”) is a trade association of motor carriers, state

trucking associations, and national trucking conferences,

created to promote and protect the interests of the trucking

industry. ATA membership includes more than 3,700

trucking companies and industry suppliers of equipment and

services. Directly and through its affiliated organizations,

ATA represents over 34,000 companies and every type and

class of motor carrier operation in the United States. ATA

regularly advocates the trucking industry’s common interests

before this Court and other courts.

AMSA is the national trade association of the moving

and storage industry. It has approximately 3,500 members

worldwide and represents the entire spectrum of the United

States domestic moving and storage industry. AMSA's

membership includes 25 national van lines, 1,100 independ-

ent regulated carriers, 1,600 agents of van lines (1,000 of

whom are also regulated carriers), and over 500 international

movers.

TRAA is a national association of more than 1,400

towing and recovery operators serving North America.

TRAA is charged with promoting professionalism, quality

customer service, and safety in towing operations throughout

the country.

' This brief was not authored in whole or in part by counsel for a

party, and no person or entity, other than the amici curiae, their

members, and their counsel! made a monetary contribution to the

preparation and submission of this brief.

2

SC&RA is a national association of motor carriers that

transport commodities whose unusual size or weight requires

special transportation equipment. SC&RA’s over 1,000

members include stee! haulers, oil field equipment transport-

transporters of construction and military equipment.

TCA is a national trade association representing the

motor carrier industry’s irregular-route truckload segment

(such as dry van, refrigerated, flatbed, and dump trailers).

TCA’s more than 600 motor carrier members are domiciled

throughout the continental United States, and serve the

United States, Mexico, and Canada.

NTTC is a national trade association of 200 corporate

members specializing in transporting hazardous materials,

substances, and wastes in cargo tank trucks. Its members

operate throughout the United States, Mexico, and Canada.

AWHM'T is a national association of motor carriers that

transport hazardous waste materials, such as industrial and

radioactive wastes. Through its approximately 80 members,

the AWHMT promotes professionalism and performance

standards that minimize risks to the environment, public

health, and safety.

NATA represents motor carriers that transport over 95%

of all new motor vehicles through either driveaway or

truckaway operations. NATA represents the joint interest of

its mineteen carrier members, and seeks continuously to

improve their quality of service, safety, and productivity.

As set forth more fully in the accompanying motion,

amici and their members (most of whom have employees in

more than one circuit) have a strong interest in the uniform

application of the Americans with Disabilities Act (“ADA”

or “Act”), including a nationally consistent interpretation of

the concept of disability covered by the Act. As the facts of

3

this case illustrate, the conflict among the circuits as to

whether disability under the ADA turns merely on whether

a person has an impairment (as the Eighth and Ninth Circuits

hold) or instead requires that an impairment substantially

limit major life activities (as the Second, Third, Fifth,

Seventh, Tenth and Eleventh Circuits hold) creates particular

difficulties for employers in the trucking and motor carrier

industries, who must balance important obligations of public

safety and non-discrimination in employment.

STATEMENT

Petitioner Albertsons is the second largest grocery chain

in the country, employing scores of over-the-road truck

drivers to transport its goods. Albertsons’ company policy is

that all drivers must meet minimum Department of Transpor-

tation (“DOT”) vision standards. Pet. App. lla. DOT

regulations provide that drivers cannot be certified as

medically competent to drive unless their visual acuity scores

are at least 20/40, corrected, in both eyes. 49 C.F.R.

§ 391.41(b)(10). When respondent Hallie Kirkingburg began

working as a driver for Albertsons in 1990, he did not meet

these minimum requirements. Although his right eye has a

visual acuity rating of 20/20 with corrective lenses, his left

eye visual acuity has been 20/200 since birth, a condition

caused by amblyopia (commonly called “lazy eye”). This

condition is not correctable with lenses. Kirkingburg’s brain,

however, has developed subconscious mechanisms to

compensate for his condition.* Pet. App. 9a-10a, 14a.

> Before working at Albertsons, Kirkingburg held a number of jobs

that depended to differing degrees on his ability to see. He trained

and worked as a jet aircraft mechanic and crew chief to the basic air

commander (1957-1960), worked as an auto mechanic for Los

Angeles County (1968-1978 or 1979), and, beginning in 1979, drove

commercial vehicles. Appellee Br. at 21 n.6.

4

Despite failing DOT and Albertsons’ vision standards,

Kirkingburg was erroneously certified as meeting them by

two different medical examiners. In 1991, Kirkingburg

injured himself falling from a truck and was out of work for

about a year. Before returning, he was required by company

policy to undergo another medical examination for recertifi-

cation. This time, the examining physician correctly deter-

mined that the visual acuity in Kirkingburg’s left eye was

20/200, a failing grade under DOT and company standards.

The physician thus refused to certify Kirkingburg. Pet. App.

10a. Albertsons then determined that Kirkingburg was not

qualified to drive the company’s commercial vehicles and

terminated him from the truck driver position. /d. at lla.

A few months later, Kirkingburg presented the company

with a waiver from the Federal Highway Administration

(“FHWA”) exempting him from the DOT’s regulatory

i under the FHWA’s new vision waiver program.

Pet. App. 11a, 37a-38a. Out of concern for public and driver

safety, Albertsons declined to accept the waiver. /d. at 11a,

37a, 4la.

Kirkingburg filed suit in the United States District Court

for the District of Oregon, claiming that Albertsons violated

the Americans with Disabilities Act, 29 U.S.C. § 12101 ef

seq., by refusing to accommodate his eye condition. Albert-

was not a qualified individual with a disability because he

could not perform an essential function of his job—satisfying

minimum DOT vision standards. The district court granted

summary judgment on this ground. Pet. App. 36a-44a.

In a 2-1 decision, the Ninth Circuit reversed the district

court. The majority held that Kirkingburg is disabled under

the ADA because his “monocular” vision substantially limits

the major life activity of seeing. In the alternative, Kirking-

burg at least raised a material fact issue as to whether

5

Albertsons regarded him as disabled. The majority also held

that Kirkingburg raised a material fact question as to whether

he could perform the essential functions of a commercial

truck driver, and that Albertsons’ policy of requiring drivers

to satisfy DOT vision acuity standards, without regard to

whether they have FHWA vision waivers, is not a valid job-

related requirement. Finally, the majority ruled that Albert-

sons failed to show that Kirkingburg and other waiver

recipients posed a direct threat to safety. Pet. App. 8a-28a.

Judge Rymer dissented on the ground that satisfying

DOT’s usual vision acuity regulations was an essential

function of Kirkingburg’s job and that Albertsons was not

obliged to employ as a driver a person who satisfied only the

requirements of FHWA’s experimental waiver program, not

the DOT safety standards themselves. Pet. App. 28a-33a.

INTRODUCTION AND SUMMARY OF ARGUMENT

Congress’s goal in enacting the Americans With Disabili-

ties Act was to “provide a clear and comprehensive national

mandate” for eradicating disability discrimination through

“clear, strong, consistent, [and] enforceable standards.” 42

U.S.C. § 12101(b)(1)-(2). To date, ADA jurisprudence has

been anything but clear and consistent; it is instead marked

by an astonishing absence of standards. Even the very heart

of the ADA—its definition of disability—has been the subject

of varying, inconsistent interpretations. In particular, the

courts of appeals are deeply divided about the legal standard

applicable to the first of the ADA’s three alternative defini-

tions of disability: “a physical or mental impairment that

substantially limits one or more of the major life activities of

such individual.” 42 U.S.C. § 12102(2)(A). While many

circuits interpret subsection (A)’s “substantially limits”

language to demand a functional analysis of any significant

limitations the plaintiff actually experiences, the decision

below eschews this analysis, considering a mere “difference”

6

to constitute a disability without proof of any identifiable

limitation.

The ADA, its implementing regulations, and its legisla-

tive history all mandate a functional, fact-based approach to

determining whether an impairment is substantially limiting.

But the Ninth Circuit’s “difference” test stops at finding an

impairment. Ignoring the statutory phrase “substantially

limits,” the Ninth Circuit’s decision operates in the realm of

the hypothetical, speculating without proof that an individual

must be disabled by virtue of a particular medical diagnosis.

As the threshold to the Act’s protection, the meaning of

“disability” must be clear and consistent among all circuits.

This Court began the clarification process last term with

Bragdon v. Abbott, 118 S. Ct. 2196, 2202 (1998), which

delineated the appropriate three-step analysis under subsec-

tion (A): finding an impairment, identifying a major life

activity, and conducting a fact-based inquiry into whether the

impairment substantially limits the major life activity. The

Court should continue this important process by now resolv-

ing the circuit split in the third step, settling once and for all

the meaning of “substantially limits.”

ARGUMENT

I. THE NINTH CIRCUIT’S DECISION CONFLICTS

WITH RULINGS OF NUMEROUS OTHER CIR-

CUITS AND OF THIS COURT

The Ninth Circuit held that “there is no question that

Kirkingburg is substantially limited in the major life activity

of seeing,” rendering him disabled under the ADA’s first

prong. Pet. App. 14a. In support, the court reasoned that

Kirkingburg “sees using only one eye; most people see using

two.” Jd. at 14a-15a. The court acknowledged that Kirking-

burg’s brain has made adjustments to compensate for his

condition. Nevertheless, it insisted that Kirkingburg’s sight

7

is substantially limited because his peripheral vision and

depth perception are “affected” and that “the manner in

which he sees differs significantly from the manner in which

most people see.” Jd. at 14a. The court gave no more than

lip service to the EEOC’s definition of substantial limitation,

which requires a significant restriction on major life activities

compared to the average person. /bid. (citing 29 C.F.R.

§ 1630.2(j)(1)(ii)). And it brushed past the factors that the

EEOC deems relevant to this analysis—the impairment'’s

severity, duration, and long-term impact. /bid. (citing 29

C.F.R. § 1630.2(j)(2)).

The decision below sharpens a well-defined circuit split

on the meaning of the phrase “substantially limits.” The

Ninth Circuit frankly acknowledged that its analysis conflicts

with a Fifth Circuit decision holding that a plaintiff with

monocular vision was not disabled because his normal daily

activities were not limited. Pet. App. 15a n.4 ‘citing Still v.

Freeport-McMoran, Inc., 120 F.3d 50, 52 (Sth Cir. 1997)).

But that split also extends far beyond cases involving

monocular vision. Addressing all manner of impairments,

most circuits have interpreted “substantial limitation” to refer

to current, significant functional limitations caused by the

impairment, while the Eighth and Ninth Circuits consider

mere “differences” or “effects” resulting from an impairment

to be su »stantially limiting.

An example of the first approach is the Second Circuit's

decision in Ryan v. Grae & Rybicki P.C., 135 F.3d 867,

870-872 (2d Cir. 1998), which held that a plaintiff with

colitis was not substantially limited in the major life activities

of waste elimination or self-care. Before reaching its deci-

sion, the court rejected the notion that an “effect” on a major

life activity equals a “substantial limitation”:

Although almost any impairment may, of course, in

some way affect a major life activity, the ADA

clearly does not consider every impaired person to

be disabled. Thus, in assessing whether a plaintiff

has a disability, courts have been careful to distin-

guish impairments which merely affect major life

activities from those that substantially limit those

activities.

Id. at 870 (citing Roth v. Lutheran Gen. Hosp., 57 F.3d

1446, 1454 (7th Cir. 1995)). The court instead inquired

limitations on the plaintiff's activities, guided by the severity,

duration, and impact factors set forth in the EEOC regula-

tions. It determined that, while Ryan's colitis was severe and

went “to the very heart of her ability to control the elimina-

tion of waste,” her showing was weak on duration and long-

term impact because she exhibited limiting symptoms only

periodically, and not at all in the past two years. /d. at 871-

872.

The Third Circuit likewise focused on significant, current

functional limitations in holding that a plaintiff diagnosed

with degenerative hip joint disease was not substantially

limited in the major life activity of walking. See Kelly v.

Drexel Univ., 94 F.3d 102, 106 (3d Cir. 1996). Like the

Second Circuit, the Third Circuit looked to the EEOC for

guidance, relying in particular on the EEOC’s position that

“‘to rise to the level of a disability, an impairment must

significantly restrict an individual's major life activities.

Impairments that result in only mild limitations are not

disabilities."” Jd. at 107 (quoting 2 EEOC Compliance

Manual § 902.4, at 902-19). Because the plaintiff had shown

only that he had some difficulty walking and climbing stairs,

imposed only “moderate,” not “significant,” restrictions

when compared to the average person. /d. at 106-107.

9

Like the Second and Third Circuits, the Fifth, Seventh,

Tenth and Eleventh Circuits hold that the statutory phrase

“substantially limits” requires a functional assessment of

current, significant limitations on major life activities. See

Still vy. Freeport-McMoran, Inc., 120 F.3d 50, 52 (Sth Cir.

1997) (plaintiff whose partial blindness limited peripheral

vision was not substantially limited in seeing because he

“offer[ed) no evidence that he is unable to engage in any

usual activity”); Roth v. Lutheran Gen. Hosp., 57 F.3d

1446, 1454 (7th Cir. 1995) (would-be doctor's eye impair-

ment not disabling because it limited only a narrow range of

jobs, not general ability to see; “[t}he key is the extent to

which the impairment restricts a major life activity; the

impairment must be a significant one”); Sutton v. United Air

Lines, 130 F.3d 893, 902-903 (10th Cir. 1997) (airline pilot

substantially limited in seeing since they “do not limit their

normal daily activities” and admitted they “function identi-

cally to individuals without a similar impairment”); Swain v.

Hillsborough County Sch. Bd., 146 F.3d 855, 858 (11th Cir.

1998) (teacher’s incontinence did not substantially limit

working because she failed to “providie] evidence beyond the

mere existence and impact of a physical impairment”).

Meanwhile, the Eighth Circuit, like the Ninth, is content

to hold that an impairment alone, if manifested in a

“difference,” is inherently disabling. See Doane v. City of

Omaha, 115 F.3d 624, 627-628 (8th Cir. 1997) (police

officer with glaucoma substantially limited in seeing because

he is “blin{d] in one eye,” which is “significantly different”

from the way most people see).’

* Related to this circuit split is another—whether the substantial

lim‘tation analysis should consider measures used to mitigate an

impairment. Most circuits ignore mitigating measures that control

otherwise severely limiting impairments, see, e.g, Arnold v. United

10

That the circuits apply such fundamentally different legal

standards to the ADA's key coverage provision signals an

urgent, clear need for this Court’s intervention. To make

matters worse, the Ninth Circuit's decision side-steps the

analysis required by this Court in Bragdon v. Abbott, the

seminal ADA case holding that asymptomatic HIV infection

can be a disability. Bragdon delineated a three-step analysis

for evaluating disability claims under the ADA’s first prong.

It instructed lower courts to conduct a separate, fact-intensive

examination of impairment, major life activity, and substan-

tial limitation. 118 S. Ct. at 2202. At the third step, the

Court grounded its substantial limitation analysis firmly in

the record evidence. /d. at 2206. The court below, in

contrast, relied on the mere existence of Kirkingburg’s

medical condition—that he “sees using only one eye; most

people see using two” (Pet. App. 14a-15a)—instead of

evaluating his actual limitations, thereby prematurely halting

the disability analysis at the impairment stage and allowing

the court to ignore evidence that Kirkingburg’s brain had

compensated for his condition. It is impossible to square

Bragdon’s insistence on a careful, fact-based inquiry into an

individual's limitations with the Ninth Circuit's narrow focus

on the existence of an impairment.

Parcel Serv., 136 F.3d 854 (ist Cir. 1998) (diabetes substantially

limiting despite amelioration with insulin). Other circuits consider the

limits of all impairments in their mitigated state, whatever their

nature, see, e.g., Murphy v. United Parcel Serv., 141 F.3d 1185 (10th

Cir. 1998) (unpublished) (high blood pressure controlled with

medication not substantially limiting). The Fifth Circuit holds that

mitigating measures may be considered if they “amount to permanent

corrections or ameliorations.” Washington v. HCA Health Servs., \52

F.3d 464, 471 (Sth Cir. 1998). This issue is presented in other

petitions for certiorari currently before the Court. See Murphy v.

United Parcel Serv., No. 97-1992 (filed June 9, 1998); Sutton v.

United Air Lines, No. 97-1943 (filed June 1, 1998).

11

fl. THE NINTH CIRCUIT’S DECISION IS ERRONE-

OUS AS A MATTER OF LAW

As Bragdon demonstrates, the ADA’s “substantially

limits” language demands on its face an analysis of the

. ; , 1 by an ipa’ Py so

impairment (poor vision in one eye) with a disability, the

Ninth Circuit renders the statutory phrase “substantially

limits” meaningless.‘

That is not what Congress intended. Congress borrowed

the ADA’s definitions of disability from the Rehabilitation

Act of 1973 (“RHA”), 29 U.S.C. § 701 et seq. See Brag-

don, 118 S. Ct. at 2202 (the ADA'’s disability definitions are

“drawn almost verbatim” from the RHA). Congress was well

aware when it did so that courts interpreting the RHA had

held that the phrase “substantially limits” confines coverage

to persons whose activities are truly limited. See, e.g.,

* The Ninth Circuit's alternative holding that Kirkingburg had raised

a fact question about whether Albertsons perceived him as having a

disability likewise ignores the phrase “substantially limits.” Under 42

U.S.C. § 12102(2\(C), which extends the ADA’s protection to a

person who is “regarded as having * * * an impairment,” the

impairment must be perceived as substantially limiting, not just

existing. See, e.g., Kelly, 94 F.3d at 109; Sutton, 130 F.3d at 900-901;

Ryan, 135 F.3d at 872. The Ninth Circuit’s observation that one

manager described Kirkingburg as “blind in one eye or legally blind”

shows only that Albertsons perceived him as impaired, not that it

perceived him as substantially limited. Pet. App. 16a-17a. Three

members of this Court have declared that this does not satisfy the

“regarded as” prong. See Bragdon, 118 S. Ct. at 2214 n.1 (Rehnquist,

C.J., Scalia and Thomas, JJ., concurring in the judgment in part and

dissenting in part) (“Respondent has offered no evidence to support

the assertion that petitioner regarded her as having an impairment that

substantially limited her ability to reproduce, as opposed to viewing

her as simply impaired”’).

12

Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir. 1986)

(“requiring a substantial limitation of a major life activity

* * * emphasizes that the impairment must be a significant

one. It was open to Congress to omit these limiting adjec-

tives, but Congress did not do so”). And Congress “intended

that the relevant caselaw developed under the [RHA] be

generally applicable to the term ‘disability’ as used in the

ADA.” 29 C.F.R. pt. 1630.2(g) app. (EEOC Interpretive

Guidance).

The ADA’s legislative history confirms that “substan-

tially limits” precludes mere medical diagnoses or impair-

ments from being disabilities under the first prong unles<

they impose significant functional restrictions. Representative

Bartlett, the House Manager of the ADA, put it best: “The

ADA includes a functional rather than a medical definition of

disability.” 136 Cong. Rec. 9072 (1990). Committee reports

from both houses likewise state that a “substantial limitation”

arises only when “the individual's important life activities are

restricted as to the conditions, manner, or duration under

which they can be performed in comparison to most peopie.”

S. Rep. No. 116, 101st Cong., 1st Sess. 23 (1989); H.R.

Rep. No. 485, Pt. Il, 101st Cong., 2d Sess. 52 (1990).

“[Ml]inor, trivial impairment[s]” are excluded. S. Rep. No.

116, at 23; H.R. Rep. No. 485, Pt. Il, at 52.

Congress’ directive that an impairment must “(s]ignificantly

restric{t]” the “condition, manner or duration” of the

plaintiff's activities compared to “the average person.” 29

C.F.R. § 1630.2(j)(1)(ii) & app. The nature and severity of

the impairment, its duration, and its long-term impact are all

relevant considerations. Jd. § 1630.2(j)(2). The EEOC

explicitly rejects basing a disability determination on a

medical condition (id. pt. 1630.2(j) app.):

13

The determination of whether an individual has a

disability is not necessarily based on the name or

diagnosis of the impairment 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 * * *.

All these sources require an evidentiary analysis of

whether an impairment causes significant life restrictions.

The Ninth Circuit simply asserted that Kirkingburg “has

monocular vision. Given the nature of the condition and its

permanence, there is no question that Kirkingburg is substan-

tially limited in the major life activity of seeing.” Pet. App.

14a. Absent from this conclusory statement is any mention

of significant restrictions that Kirkingburg experienced

compared to the average person. Conveniently ignored were

the severity and impact factors, which belied any finding of

substantial limitation in light of evidence that Kirkingburg

had adapted to his condition.

The Ninth Circuit’s decision contravenes Congress's

intent to eschew a medical definition of disability in favor of

a functional one. The court made no effort to ascertain the

effect monocular vision had on Kirkingburg's life. As one

commentator observed, the substantial limitation analysis

“should emphasize the characteristics of a particular individ-

ual, not the abstract question of whether an impairment limits

an activity. * * * Both Congress and the agencies have

underscored the importance of emphasis on ‘substantially .’”

Anna P. Engh, Note, The Rehabilitation Act of 1973:

Focusing the Definition of a Handicapped Individual, 30

Wo. & Mary L. REV. 149, 174-175 (1988). That the Ninth

Circuit has strayed so far from what Congress intended, and

what this Court and the EEOC have required, signals a

serious need for this Court’s clarification of the phrase

“substantially limits.”

14

Il. THE ISSUE PRESENTED IS OF GREAT PRAC-

TICAL IMPORTANCE

The Ninth Circuit’s faulty analysis has far-reaching

practical consequences. A functional standard is crucial for

obtaining fair results with so-called “non-classic” impair-

ments (such as depression, non-blinding eye impairments,

joint and back ailments, and dyslexia), the limiting effects of

which are often not readily apparent. Applying the Ninth

Circuit’s “difference” test to these impairments would always

result in a finding of disability no matter how minor the

limitation or how complete the plaintiff's adaptation, pulling

within the ADA’s coverage “minor,” “trivial” impairments

that Congress specifically sought to exclude.

A “difference” test also creates a perverse incentive for

persons with non-limiting or minor impairments to misrepre-

sent them as limiting when convenient to secure employment.

A case in point is Roth v. Lutheran General Hospital, 57

F.3d 1446 (7th Cir. 1995), in which a would-be doctor

claimed he could not pursue his chosen profession because of

a visual impairment that prevented working for more than

eight to ten hours at a time. Dr. Roth was diagnosed with

eye impairments that affected his ability to fuse objects and

sense depth. Despite this congenital condition, he completed

pharmacy and law degrees—earning the latter full-time while

working nights and weekends as a pharmacist—and served as

a faculty lecturer and defense attorney/consultant while

attending medical school, all without accommodation. On job

and school applications, Dr. Roth characterized his vision as

“cured.” Id. at 1448-1449, 1454. The Seventh Circuit denied

his request for a preliminary injunction ordering his admis-

sion to a residency program, holding that while his impair-

ment “affected” major life activities, it did not “ris[e] to the

level of a disability.” Jd. at 1454.

15

These facts would produce an absurd and unjust result

under the “difference” test. Dr. Roth's diagnosed eye

impairments and the evidence that they had some effect on

his sight would render him disabled under the ADA’s first

prong. Ignored would be the contrary evidence that his eyes

permitted lengthy, uninterrupted, eye-straining work, and the

fact that he had represented to employers and educators that

his vision suffered no limitations. In short, Dr. Roth used his

impairment only when it was convenient—to get him the job

of his choice. But as the Seventh Circuit observed, “there is

a clear bright line of demarcation between extending the

statutory protection to a truly disabled individual (so that he

or she can lead a normal life * * *) and allowing an individ-

ual with marginal impairment to use disability laws as

bargaining chips to gain a competitive advantage.” Jd. at

1460.

The same could be said of Kirkingburg, who performed

sight-dependent jobs (including truck driving) for years

before joining Albertsons, concealed his condition from the

company for two years, then claimed to be disabled because

he failed Albertsons’ particular job requirement denying

waivers from DOT standards. An individual is not “substan-

tially limited” by virtue of exclusion from one job because of

its particular requirements. °

The ADA should not permit an employee to assert a

disabling medical condition, then point to the absence of

actual limitations to skirt an employer’s legitimate safety

* See Homeyer v. Stanley Tulchin Assocs., 91 F.3d 959, 961 (7th Cir.

1996); Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.

1996); Aucutt v. Six Flags Over Mid-America, 85 F.3d 1311, 1319

(8th Cir. 1996); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727

(Sth Cir. 1995); Bolton v. Scrivner, Inc., 36 F.3d 939, 942-943 (10th

Cir. 1994).

16

standards. Many individuals are not significantly restricted

enough to be disabled, but nevertheless present genuine

safety risks to themselves or others for particular jobs. A

police force, for example, is entitled to exclude an officer

with 20/200 vision, even if correctable to 20/20, because

“officers are not able to call a ‘time out’ in emergencies

while they look for their glasses or lost contact lenses.”

Joyce v. Suffolk County, 911 F. Supp. 92, 97 (E.D.N.Y.

1996). A University may prohibit a student with a cardiac

defect from playing collegiate basketball to avoid the risk

that he will suffer cardiac death. Knapp v. Northwestern

Univ., 101 F.3d 473, 479-482 (7th Cir. 1996). And a person

with a minor sensory deficit in two fingers may be rejected

as a firefighter because of the potential for injury if a

burning ember drops into his glove. Welsh v. City of Tulsa,

977 F.2d 1415, 1416 (10th Cir. 1992). As the district court

in this case aptly observed, “[i]f plaintiff were ever involved

in an accident, defendant would have difficulty explaining

why it hired a driver who could not meet DOT vision

requirements.” Pet. App. 41a. Employers should not have to

choose between violating the ADA or being sued for negli-

gence.

Employers cannot rely for protection on the ADA’s

requirements that employees be “qualified” (i.e., able to

perform the job’s essential functions and meet job-related

) and not pose a direct safety threat. 42 U.S.C.

§§ 12112(a), 12113(b). Under the Ninth Circuit's test,

individuals who can point to a diagnosed medical condition

will be deemed “different” and thus, disabled. Their lack of

significant functional limitations, however, will permit a

court to find them “qualified” and not a direct safety threat;

the court can simply disregard any safety standard excluding

these employees as unnecessarily strict.

~

17

Employers must be able to rely on a logical, reasoned

interpretation of the disability definition to limit the Act’s

scope to those it was meant to protect. A functional analysis

of an impairment’s actual, significant restrictions achieves

this; the Ninth Circuit’s focus on whether an employee has

a medical condition does not.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted.

ROBERT DIGGES

ATA Litigation Center

JAMES D. HOLZHAUER

Counsel of Record

2200 Mill Road TImMoTHY S. BISHOP

Alexandria, VA 22314 SUSAN E. PROVENZANO

(703) 838-1865 Mayer, Brown & Platt

190 South LaSalle Street

Chicago, IL 60603

(312) 782-0600

Counsel for Amici Curiae

NOVEMBER 1998