Amicus Curiae Brief — Albertson's, Inc. v. Kirkingburg
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No. 98-591
In the Supreme Court of the United States
OCTOBER TERM, 1998
ALBERTSONS, INC., PETITIONER
U.
HALLIE KIRKINGBURG
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
AND THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE
SUPPORTING RESPONDENT
SETH P. WAXMAN
Solicitor General
Counsel of Record
C. GREGORY STEWART BILL LANN LEE
General Counsel Acting Assistant Attorney
PHILIP B. SKLOVER General
Associate General Counsel BARBARA D. UNDERWOOD
LORR AINE * DAVIS Deputy Solicitor General
Assistant General Counsel JAMES A. FELDMAN
ROBERT J. GREGORY Assistant to the Solicitor
Attorney General
Equal Employment JESSICA DUNSAY SILVER
Opportunity Commission TIMOTHY J. MORAN
Washington, D.C. 20507 Attorneys
Department of Justice
Washington, D.C. 20530
(202) 514-2217
QUESTIONS PRESENTED
1. Whether there are genuine issues of material fact as to
whether respondent was disabled, within the meaning of 42
U.S.C. 12102(2)(A), when petitioner fired him from his job as
a truck driver.
2. Whether there are genuine issues of material fact as to
whether respondent, who had received a vision waiver from
the Department of Transportation to drive a commercial
truck in interstate commerce, was “qualified” to be a truck
driver for petitioner.
TABLE OF CONTENTS
Interest of the United States
Statement
Summary of argument
Argument:
I. Petitioner was not entitled to summary judg-
ment on the ground that respondent is not a
person with a disability
A. Respondent's claim of actual disability
was not challenged by petitioner’s summary
judgment motion, and respondent therefore
did not offer the ample available evidence to
support it
B. The court of appeals’ ruling on respondent's
alternative claim that he was “regarded as”
disabled was not challenged by the petition
for certiorari and is not properly before this
Court
II. Petitioner was not entitled to summary
judgment on the ground that respondent, as
result of his monocular vision, was not qualified
to drive a truck for petitioner
A. Anemployer may not employ qualification
standards that tend to screen out disabled
persons unless those standards can be
justified under the ADA
B. The ADA requires safety-based standards
to be shown to be necessary to avoid a
direct threat to health or safety
C. Petitioner was not entitled to summary
judgment, because there were significant
issues of material fact concerning whether
its binocular vision standard was
EES
r
(IID)
iui
15
19
19
8
IV
TABLE OF AUTHORITIES
Cases Page
Advocates for Highway & Auto Safety v.
Federal Highway Admin., 28 F.3d 1288
(D.C. Cir. 1994) 27, 28, 29
Bradgon v. Abbott, 118 S. Ct. 2196 (1998) . 11, 12, 14,
23, 26, 27
Celote Corp. v. Catrett, 477 U.S. 317 (1986) 10
Chevron U.S.A. Ine. v. Natural Resources Defense
Council. Inc., 467 U.S. 837 (1984) 12
Coleman v. Southern Pac. Transp. Co, 997 F.
Supp. 1197 (W.D. Ariz. 1998) 11
Deane v. Pocono Med. Ctr., 142 F.3d 138 (3d Cir.
1997) 21
Doane v. City of Omaha, 115 F.3d 624 (8th Cir.
1997), cert. denied, 118 S. Ct. 693 (1998) 11
EEOC v. Union Pac. R. R., 6 F. Supp. 2d 1135
(D. Idaho 1998) 11
Judwin Properties, Inc. v. U.S. Fire Ins. Co.,
973 F. 2d 432 (5th Cir. 1992) 10
Magiera v. Ford Motor Co., No. 9700421, 1998 WL
704061 (N.D. Ill. Sept. 30, 1998) 11
Me ken non v. Nashville Banner Pub. Co., 513 U.S.
352 (1995) 28
National Fire Ins. v. Bartolazo, 27 F.3d 518 (11th
Cir, 1994) 10
Norcross v. Sneed, 755 F.2d 113 (8th Cir. 1985) 17
Otis Elevator Co. v. George Washington Hotel Corp.,
27 F.3d 903 (3d Cir. 1994) 10
Peckmann v. Thompson, 966 F 2d 295 (7th Cir.
1992) 10
Rauenhorst v. U.S. Dep't of Transp., 95 F.3d 715
(8th Cir. 1996) 27
School Bd. v. Arline, 480 U.S. 273 (1987) 17, 23
V
Stella v. Town of Tewksbury, 4 F. ad 53 (1st Cir.
1993) 10
Still v. Freeport McMoran, Inc., 120 F.3d 50 (5th
Cir. 1997) 14, 15
Stinson v. United States, 508 U.S. 36 (1993) 12
Stone v. City of Mount Vernon, 118 F.3d 92 (2d
Cir. 1997), cert. denied, 118 S. Ct. 1044 (1998) 21
Winbourne v. Eastern Air Lines, Inc, 632 F. 2d
219 (2d Cir. 1980) 10
Statutes, regulations and rules:
Administrative Procedure Act, 5 U.S.C. 551 28
Americans with Disabilities Act of 1990, 42 U.S.C.
12101 et seq. passim
42 U.S.C. 12102(2) A) 9, 11, 15, 17
42 U.S.C. 12102020) 3 15,17
Tit. 1, 42 U.S.C. 12111 et seg. 14
42 U.S.C. 12111(3) 22
42 U.S.C. 12111(8) 21
42 U.S.C. 12112 18
42 U.S.C. 12112(a) 19
42 U.S.C, 12112(b\5)(A) . 25
42 U.S.C. 12112(b\6) 19
42 U.S.C. 12113(a) 20, 22, 25
42 U.S.C. 12113(b) * 22
42 U.S.C. 12116 12
42 U.S.C. 12117(a) 12
Tit. V, 42 U.S.C. 12201 et Se.:
42 U.S.C. 12206(e)(1)-(2)(A) 12
Motor Carrier Safety Act of 1984, 49 * 31131
et seq. 2,6
49U S.C. 31135 2
49 U.S.C. 31136(a\3) 2
49US.C. 31136(e) 2
49 U.S.C. 31315 2
Rehabilitation Act of 1973, 29 U.S.C. 701 17
VI
Statutes, regulations and rules—Continued:
Transportation Equity Act for the 21st Century,
Pub. L. No. 105-178, 112 Stat. 107
§ 4007, 112 Stat. 401
29 C. F. R.:
Part 1630:
Section 1630.2(h\(1)
Section 1630.2(i)
Section 1630.2()) .....
Section 1630.2(j3)i)
Section 1630.2(n)(1)
Section 1630.2(n)(3)i)
Section 1630.2(r)
Section 1630.15(e)
App. § 1630.2(r)
App. § 1630.10
App. § 1630.15(b)
App. § 1630.15(c)
App. § 1630.15(e)
49 C. F. R.:
Section 1.48(aa)
Section 1.48(f)
Section 390.3(a)
Section 390.3(d)
Section 390.5
Section 391.41(b)(10)
Section 391.43
Section 391.45
Section 391.45(b)(1)
Section 391.64(b)
Fed. R. Civ. P.:
Rule 56
Rule 56(c)
Sup. Ct. R.:
Rule 14.1(a)
Rule 15.2
Rule 24.1(a)
——
.
18. 19
*
ILE
S
w
VII
Miscellaneous: Page
Bartow Assocs., Inc., The Moncular Driver: A Review
of Distant Visual Acuity Risk Analysis Data
(1982) 24
Hugh Davson, The Physiology of the Eye (2d ed.
1963) 13
35 Fed. Reg. 6458 (1970) 3
57 Fed. Reg. (1992):
p. 6794 24
p. 31,459 23-24
p. 31,460 29
59 Fed. Reg. 50,888 (1994) 24, 28
Samuel L. Fox, Industrial and Occupational
Ophthalmology (1973) 13
Esther G. Gonzales et al., Depth Perception
in Children Enucleated at an Early Age, 4 Clin.
Vision Sci. 173 (1988) 13
H.R. Rep. No. 485, 101st Cong., 2d Sess. (1990):
Pt. 2 14, 23, 25
Pt. 3 20, 23
A. J. McKnight et al., The Viswal and Driving
Performance of Monocular and Binocular Heavy-
Duty Truck Drivers, 23 Accid. Anal. & Prev. 225
(1991) 12, 13
S. Rep. No. 116, 101st Cong., Ist Sess. (1989) 20, 23, 27
James E. Sheedy et al., Binocular vs. Monocular
Task Performance, 63 Am. J. of Optometry &
Physiological Optics 839 (1986) 13
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-591
ALBERTSONS, INC., PETITIONER
.
HALLIE KIRKINGBURG
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
AND THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE
SUPPORTING RESPONDENT
INTEREST OF THE UNITED STATES
This case concerns the definitions of “disability” and
“qualified individual with a disability,” two important statu-
tory terms in the Americans with Disabilities Act of 1990
(ADA), 42 U.S.C. 12101 et seg. Congress delegated to the
Equal Employment Opportunity Commission (EEOC) and
the Department of Justice authority to promulgate regula-
tions and to enforce the provisions of the ADA. Both
agencies have issued extensive regulations and interpretive
guidance concerning the definition of these terms. In
addition, this case concerns the extent to which vision
waivers issued by the Department of Transportation pur-
suant to the Motor Carrier Safety Act of 1984, 49 U.S.C.
(1)
2
31131 et seg, may affect an employer's obligation to comply
with the ADA.
STATEMENT
1. The Motor Carrier Safety Act of 1984 (Safety Act)
directs the Secretary of Transportation to “prescribe regula-
tions on commercial motor vehicle safety,” that “ensure that
* * * the physical condition of operators of commercial
motor vehicles is adequate to enable them to operate the
vehicles safely.“ 49 U.S.C. 31136(a)(3). The Act also pro-
vides that Ae lach employer and employee shall comply with
regulations on commercial motor vehicle safety prescribed
by the Secretary of Transportation * * * that apply to the
employer’s or employee’s conduct.” 49 U.S.C. 31135. During
the time period relevant to this litigation, the Act authorized
the Secretary to “waive any part of a regulation as it
applies to a person or class of persons, if the Secretary
decides that the waiver is consistent with the public interest
and the safe operation of commercial motor vehicles.” 49
U.S.C. 31136(e).' If the Secretary waives a regulation (such
as the vision standards at issue here), it no longer “»pllies}”
to employers and employees under Section 31135, and they
need not comply with it.
The Secretary has delegated regulatory authority under
the Safety Act to the Federal Highway Administration
(FHWA). 49 C.F.R. 1.48(aa), 1.48(f). Under FHWA regula-
tions, persons who operate commercial vehicles that weigh
more than 10,000 Ibs. and transport persons or property in
interstate commerce must undergo a physical examination
Congress amended the waiver provisions, effective June 9, 1998, in
the Transportation Equity Act for the 21st Century, Pub. L. No. 105-178,
112 Stat. 107. The new statute provides that the Secretary may issue an
“exemption” for a renewable 2-year period, if he finds that “such exemp-
tion would likely achieve a level of safety that is equivalent to, or greater
than, the level that would be achieved absent such «xemption.” See
§ 4007, 112 Stat. 401 (codified at 49 U.S.C. 31315).
3
every two years to determine whether they can be certified
as satisfying the requisite physical qualifications. See 49
C. F. R. 390.3(a), 390.5, 391.43, 391.45., 391.45(b)(1).
Under the federal vision standards that have been in
effect since 1971, an individual is qualified to drive a com-
mercial vehicle in interstate commerce if that person, inter
alia, hlas distant visual icuity of at least 20/40 (Snellen) in
each eye without corrective lenses or visual acuity sepa-
rately corrected to 20/40 (Snellen) or better with corrective
lenses.” 49 C.F.R. 391.41(b)(10); 35 Fed. Reg. 6458 (1970).
That standard excludes individuals who have poor vision in
one eye that cannot be corrected.
2. Respondent Hallie Kirkingburg has been driving com-
mercial trucks since 1979. J.A. 228, 286-287. The vision in
respondent’s right eye is 20/20 and his vision in both eyes is
at least 20/25. J.A. 34-35, 99-101. The vision in respondent’s
left eye, however, has been 20/200 since birth. J.A. 34-35.
The poor vision is caused by amblyopia, a condition com-
monly referred to as “lazy eye,” and it is not correctable by
corrective lenses. J.A. 35. Respondent’s treating optome-
trist. Dr. Beatrice Michel, O. D., testified that respondent’s
vision is essentially monocular. J.A. 306 (respondent “has
always functioned as a one- eyed person”). She also testified,
however, that respondent has learned to rely on “monocular
cues” to compensate for restrictions on his ability to perceive
depth. J.A. 300-303. Dr. Michel testified that in her medical
opinion respondent can drive a commercial vehicle as well as
a person with standard vision in both eyes. J.A. 36, 305-306.
In August 1990, petitioner Albertson’s, Inc. hired respon-
dent as a driver at its distribution center in Portland,
Oregon. J.A. 228, 275, 367. Prior to starting work for peti-
tioner, respondent was examined by a physician who
certified that respondent’s vision met the requirements
established by the Department of Transportation (DOT).
J.A. 99-101. Respondent also satisfactorily completed an
4
eighteen-mile road test administered by Albertson’s. C. A.
Rec. 133-134, 144.
In December 1991, respondent injured his head when he
fell from a company truck. J. A. 367. He was unable to work
for almost a year. J. A. 283. Petitioner required respondent
to have a new physical examination by one of its contract
physicians before returning to work. J.A. 283. A physician
examined respondent on November 5, 1992. J.A. 357. The
physician informed respondent that his vision did not meet
federal standards and that he would have to obtain a vision
waiver from DOT. J.A. 284. Respondent promptly applied
for a waiver on Nov. 12, 1992. J.A. 369.
Petitioner dismissed respondent by telephone on Novem-
ber 20, 1992, and told him that petitioner would not accept 4
vision waiver. J.A. 364. Franklin Delano Riddle, the general
manager at petitioner’s Portland Distribution Center, J.A.
312. made the decision to fire respondent, J.A. 314. Riddle
told another employee that they would have to fire respon-
dent because “he was legally blind, or blind in one eye.” J.A.
341.
At the time of respondent's termination, petitioner's em-
ployment manual required drivers to “comply with all
Department of Transportation, Interstate Commerce Com-
mission and Company safety rules.” J.A. 333. The company
had no written vision standards or policy regarding waivers.
J.A. 332-334, 340. Petitioner’s sole basis for deciding not to
accept the waivers was its concern about safety. J.A. 315,
323.
DOT issued respondent a vision waiver on February 25,
1993, authorizing him to “operate a CMV [commercial motor
vehicle] in interstate commerce.” J.A. 379, 381. Respondent
informed petitioner that he had obtained a vision waiver, but
petitioner refused to reinstate him as a driver. J. A. 276, 385-
386, 393. After respondent filed a union grievance, peti-
tioner offered respondent a position as a yard hostler, a
position that involved moving trailers on company property.
5
J.A. 388. Petitioner later withdrew the offer, however,
claiming that DOT certification was required for the posi-
tion.” J. A. 395-396.
3. Respondent filed suit in the United States District
Court for the District of Oregon alleging that petitioner’s
conduct violated the ADA. J.A. 4. Petitioner moved for
summary judgment on the sole ground that respondent was
not “qualified” for a driving position with petitioner; peti-
tioner did not argue that respondent was not disabled, J.A.
39-48, but instead stated in its moving papers that should
this case go to trial, [respondent] will of course bear the
burden of proving all elements of his ADA claim, including
the existence of a covered disability.“ J. A. 60 n. 1. The
district court granted petitioner’s motion on October 25,
1995. J.A. 122. The court held that petitioner “properly
considered meeting DOT minimum requirements” to be an
essential function of the job, and that “the ADA does not
obligate [petitioner] to employ truck drivers who have
received vision waivers.” J.A. 119-120.
4. On appeal, a divided panel of the United States Court
of Appeals for the Ninth Circuit reversed. Petitioner
argued, apparently as an alternative ground for affirmance,
that respondent was not disabled because he was not
substantially limited in the major life activity of seeing. The
court did not refer to the fact that petitioner had never
moved for summary judgment on that ground, but instead
rejected petitioner’s argument on its merits. Noting that
EEOC regulations define an impairment to be substantially
limiting if it “significantly restricts as to the condition, man-
2 DOT certification would not have been required for such a position
if it did not involve driving on the road. Petitioner later offered respon-
dent a position as a tire mechanic. Respondent turned down the position,
in part because the pay was substantially below what he had received as a
driver. J.A. 281-282.
6
ner or duration under which an individual can perform a
particular major life activity,” the court held:
Kirkingburg’s inability to see out of one eye affects his
peripheral vision and his depth perception. Although his
brain has developed subconscious mechanisms for coping
with this visual impairment and his body compensates
for his disability, the manner in which he sees differs
significantly from the manner in which most people see.
To put it in its simplest terms, Kirkingburg sees using
only one eye; most people see using two.
J.A. 234-235. As an “alternative ground for [its] decision,”
the court held that evidence that one of [petitioner’s] manag-
ers described him as “blind in one eye, or legally blind” was
sufficient to raise a genuine issue as to whether [petitioner]
regarded respondent as disabled. J.A. 236-237.
The court further held that respondent had raised a
genuine issue of material fact as to whether he was
“qualified” to drive a truck. The court held that respon-
dent’s record of driving commercial trucks safely was
sufficient to establish that he could perform the essential
functions of the job. J.A. 237-238. The court rejected
petitioner’s argument that federal law precluded it from
allowing respondent to drive. The court noted that the
Safety Act authorized DOT to waive its regulatory require-
ments and that respondent had obtained a waiver. J.A. 239-
240.
The court further held that petitioner had presented no
evidence that respondent or other commercial drivers who
met the vision waiver requirements were a direct safety
threat. J.A. 246. The court added that petitioner was not in
any event free to adopt stricter safety standards than those
required by federal law. The court held that in light of the
FHWA’s determination that waiver recipients do not pose a
threat to public safety, petitioner was precluded from assert-
ing that they do. The court left open the possibility that
7
petitioner might be able to adhere to stricter standards if it
established that the work its drivers performed was sub-
stantially different-from the work performed by other com-
mercial truck drivers. J.A. 247-248.
Judge Rymer dissented on the ground that respondent
had not established that he was “qualified”. She asserted
that petitioner was not required to honor respondent’s
waiver because in 1992 the agency had not had a basis for
determining that the waivers would be consistent with
public safety. J.A. 249-254.
SUMMARY OF ARGUMENT
The court of appeals correctly decided that petitioner was
not entitled to summary judgment on the ground that
respondent was not disabled. Initially, the court of appeals’
holding can be affirmed on the basis that petitioner did not
move for—and was not granted—judgment on the ground
that respondent was not disabled. In any event, monocular
vision is frequently a disability under the ADA, because it
substantially limits both the amount (the visual field) and
the quality (the ability to see in three dimensions) of an
individual’s major life activity of seeing. The fact that it may
not also limit other “normal daily activities” of the individual,
see Pet. Br. 22, is of no significance, because the ADA is
largely premised on the principle that individuals who are
limited in one or more major life activities (here, seeing) can
overcome those limitations to perform many activities (in-
cluding working) competently and effectively.
Petitioner argues that the court of appeals erred in hold-
ing that it was not entitled to summary judgment on the
ground that respondent was not “regarded as” disabled. The
petition for certiorari did not present any question con-
cerning the court of appeals’ “regarded as” holding, and
accordingly petitioner’s “regarded as” argument is not
properly before the Court. In any event, the court of appeals
correctly held that petitioner’s statement that respondent
8
was, inter alia, “legally blind” was sufficient to create a
material issue of fact concerning whether petitioner
regarded respondent as disabled. In addition, evidence of
petitioner’s apparent belief that respondent could not safely
perform any job that required DOT certification is sufficient
to create a material issue of fact as to whether petitioner
regarded respondent as substantially limited in the major
life activity of working.
The court of appeals was also correct in holding that peti-
tioner was not entitled to summary judgment on the ground
that respondent was not qualified for his job. A qualification
standard, such as petitioner’s binocular vision standard,
must be justified under the ADA in terms of job-relatedness
and consistency with business necessity. In the case of
qualification standards that are based on a safety rationale,
that requires an inquiry into whether respondent would pose
a “direct threat” to the health of safety of himself or others.
Although that defense may be made out when an employer
takes an action required by a federal safety standard,
petitioner cannot rely on that justification here, since peti-
tioner could have complied with all applicable regulations by
permitting respondent to apply for a vision waiver, which
respondent ultimately did obtain. Because there was
substantial evidence that respondent could safely drive a
truck, and because the only evidence pointed to by petitioner
to the contrary was the (waivable) federal binocular vision
standard that petitioner adopted without the waiver com-
ponent, there remain substantial issues of material fact that
would preclude granting summary judgment to petitioner on
this ground.
9
ARGUMENT
I. PETITIONER WAS NOT ENTITLED TO SUMMARY
JUDGMENT ON THE GROUND THAT RESPON-
DENT IS NOT A PERSON WITH A DISABILITY
A. Respondent's Claim Of Actual Disability Was Not
Challenged By Petitioner's Summary Judgment Mo-
tion, And Respondent Therefore Did Not Offer The
Ample Available Evidence To Support It
Petitioner's summary judgment motion did not challenge
respondent’s claim of “disability,” but instead challenged
only his claim that, despite his disability, he was “qualified”
for the job. J.A. 39-40. Therefore, respondent did not
develop the summary judgment record regarding the nature
and extent of his impairment to show that his monocular
vision constituted a disability.
When petitioner challenged the existence of a disability
for the first time on appeal, see J.A. 182-185, the court of
appeals declined to hold that petitioner was entitled to
summary judgment on the issue. J.A. 234-237. That holding
was correct, because it cannot be said that respondent could
not meet a properly supported summary judgment motion
on this point. To the contrary, as set forth below, monocular
vision will frequently constitute-a disability within the
meaning of the statute—“a physical or mental impairment
that substantially limits one or more of the major life
activities of lan] individual,” 42 U.S.C. 12102(2)(A)—namely,
the major life activity of seeing.
1. Petitioner acknowledges that it “filed for summary
judgment on the ground that [respondent] was not a quali-
fied individual, with or without accommodation, under the
ADA because he could not meet the DOT vision standards.”
Pet. 11; see J.A. 39-40. Petitioner did not move for summary
judgment on the ground that respondent was not disabled,
and the district court did not address that issue in the course
10
of its decision to grant summary judgment to petitioner on
the ground that petitioner was not “qualified.” J.A. 115-121.
In Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), this
Court noted that under Federal Rule of Civil Procedure 56,
“a party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for
its motion.” Jd. at 323. The moving party’s discharge of that
responsibility in turn “requires the nonmoving party to go
beyond the pleadings and by her own affidavits, or by the
‘depositions, answers to interrogatories, and admissions on
file,’ designate ‘specific facts showing that there is a genuine
issue for trial.“ Jd at 324. See also id. at 328 (White, J.,
concurring). If the party has not been placed on notice that
summary judgment may be entered against it on a particular
ground, any absence of sufficient evidence to create a mate-
rial issue of fact essential to that ground does not betoken
the lack of a genuine dispute between the parties.
As the Court noted in Celotex, a district court has authority to
enter summary judgment sua sponte—but only if “the losing party was on
notice that she had to come forward with all of her evidence.” 477 U.S. at
326. The lower courts have uniformly held that summary judgment may
not be entered against a party that had no notice or that was not given the
full ten-day period provided by Rule 56(c) to produce its evidence for the
summary judgment record. See, e., National Fire Ins. v. Bartolazo, 27
F.3d 518, 519 (11th Cir. 1994); Otis Elevator Co. v. George Washington
Hotel Corp., 27 F.3d 903, 909-910 (3d Cir. 1994); Stella v. Town of
Tewksbury, 4 F.3d 53 (Ist Cir. 1993); Peckmann v. Thompson, 966 F. 2d
295, 297 (7th Cir. 1992); Judwin Properties, Inc. v. United States Fire Ins.
Co., 973 F.2d 432, 436-437 (5th Cir. 1992); Winbourne v. Eastern Air
Lines, Inc., 632 F 2d 219 (2d Cir. 1980).
Petitioner’s argument illustrates the difficulty of viewing the summary
judgment record in this case as if it were complete. Petitioner relies
heavily on respondent’s reply, “Not that I recall,” to the question whether
his impairment has ever interfered with his work. See Br. 23. That
answer may be of relevance had respondent claimed to be limited in
working, but it does not suggest that respondent is not substantially
limited in the major life activity of seeing.
11
Because petitioner failed to move for summary judgment
on the question whether respondent was a person with a
disability, summary judgment may not be entered against
respondent on that ground. The only possible exception to
that rule would be if it could be shown that the party against
whom summary judgment is sought could not possibly have
introduced evidence in support of its claim, i.e., if the plead-
ings are essentially sufficient to warrant judgment against
that party. As we show below, however, there is ample
support for the proposition that monocular vision is ordinar-
ily a disability under the ADA, because it substantially limits
the major life activity of seeing. The Ninth Circuit there-
fore correctly declined to grant summary judgment to peti-
tioner on the ground that monocular vision is not a disability.
2. The ADA defines a “disability” in terms of three sepa-
rate, alternative criteria. Under the first criterion—actual
disability—a disability is “a physical or mental impairment
that substantially limits one or more * * * major life
activities.” 42 U.S.C. 12102(2)(A). There is no dispute that
monocular vision is a “physical * * * impairment.” See 29
C. F. R. 1630.2(h)(1); Bragdon v. Abbott, 118 S. Ct. 2196, 2202
(1998). Monocular vision frequently substantially limits the
major life activity of seeing.” See id. at 2205 (“seeing” is
major life activity); 29 C. F. R. 1630.2(i) (same).
EEOC regulations state that an impairment is sub-
stantially limiting if it Is ſignificantly restrict{[s} * * the
condition, manner or duration under which an individual can
perform a particular major life activity as compared to the
See Doane v. City of Omaha, 115 F.3d 624 (8th Cir. 1997), cert.
denied, 118 S. Ct. 693 (1998); EEOC v. Union Pac. R.R., 6 F. Supp. 2d
1135 (D. Idaho 1998); Coleman v. Southern Pac. Transp. Co., 997 F. Supp.
1197 (W. D. Ariz. 1998); Magiera v. Ford Motor Co., No. 97C0421, 1998 WL
704061 (N. D. Ill. Sept. 30, 1998).
Any issues regarding whether there are differences among mon-
ocular individuals based on the extent of vision loss in the affected eye and
precise measures of respondent’s vision would remain open on remand.
12
condition, manner, 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).° The regulations
thus correctly recognize that an impairment may sub-
stantially restrict the process by which a person performs a
major life activity, even if they do not make performance of
that activity impossible. See Bragdon, 118 S. Ct. at 2206
(“The Act addresses substantial limitations on major life
activities, not utter inabilities.”).
3. Studies of monocular vision indicate that it often
substantially limits vision.’ Most studies agree that the most
significant limitations of monocular vision are reduced field
of vision and lack of binocular depth perception. See, e. g.,
A. J. McKnight et al., The Visual and Driving Performance
of Monocular and Binocular Heavy-Duty Truck Drivers, 23
Accid. Anal. & Prev. 225 (1991). With respect to visual field,
one study found that, on average, persons with monocular
vision had a visual field of 145 degrees as compared to 173
degrees for persons with binocular vision. Id. at 231. That
study concluded that this difference was “obviously highly
significant both statistically and practically.” Ibid.
Persons with monocular vision also lack binocular depth
perception. Binocular vision enables persons to achieve
6 “As the agency directed by Congress to issue implementing regula-
tions [see 42 U.S.C. 12116], to render technical assistance explaining the
responsibilities of covered individuals and institutions [see 42 U.S.C.
12206(c)(1)-(2A)], and to enforce Title II] in court [see 42 U.S.C.
12117(a)], the [EEOC]'s views are entitled to deference.” Bragdon, 118
S. Ct. at 2209 (citing Chevron U.S.A. Inc. v. Nacural Resources Defense
Council, Inc., 467 U.S. 837, 844 (19843). The EEOC’s commentary
interpreting its own regulations and its Technical Assistance Manual are
also “entitled to deference.” See Stinson v. United States, 508 U.S. 36, 45
(1993).
7 The court of appeals noted not only that respondent sees in a
different “manner,” but also that his vision is “limited” in both depth
perception and peripheral vision. J.A. 234-235.
“stereopsis,” i.e. to see objects in three dimensions. See
Hugh Davson, The Physiology of the Eye 351 (2d Ed. 1963);
Samuel L. Fox, Industrial and Occupational Ophthalmol-
ogy 23 (1973). Because the two eyes are separated laterally,
their two images are not identical; one eye receives a right-
view of the object and the other a left-slanted view. When
the two images are merged in the visual cortex, a three-
dimensional image results. [bid.
Persons with monocular vision are not able to achieve
stereopsis and therefore do not see objects in a three-
dimensional pattern. Davson, supra, at 351. Stereopsis is
not, however, the only method of perceiving depth. There
are a variety of “monocular cues” (v e., visual observations
that do not require binocular vision) that can contribute to
depth perception. See, e.g., Esther G. Gonzalez et al., Depth
Perception in Children Enucleated at an Early Age, 4 Clin.
Vision Sci. 173 (1988); see also James E. Sheedy, et al.,
Binocular vs. Monocular Task Performance, 63 Am. J. of
Optometry & Physiological Optics 839 (1986); J.A. 301.
There is also evidence that many people adjust to loss of
vision in one eye in approximately one year or less. Gonzalez,
supra, at 173. Researchers have concluded that stereopsis is
most important at perceiving depths less than six meters
away, cf. J.A. 300, but that it can contribute to depth per-
ception for distances up to 185 meters. McKnight, supra, at
227.
4. Taken together, the limitations monocular vision im-
poses on a person’s ability to see, in terms of field of vision
and lack of three-dimensionality, are “substantial” within the
meaning of the ADA and “significant” within the meaning of
the EEOC’s implementing regulations. Both the amount
that a monocular person sees and the quality of what such a
person sees may be substantially less than that of an
individual with binocular vision. The amount is less because,
as noted above, when a person with one functioning eye
looks out at the world, that person sees a substantially
14
narrower field than when an individual with binocular vision
looks at the same place. And the quality is less because, as
explained above, a monocular individual will be unable to
perceive an essential quality of objects—their three-
dimensional nature—through his eyes. In our view, mono-
cularity will therefore frequently be a disability under the
ADA.
5. Petitioner argues that a person is disabled within the
meaning of the ADA only if the person cannot “otherwise
perform normal daily activities requiring eyesight,” and that
respondent’s monocular vision does not satisfy that test.
Pet. Br. 22 (citing Still v. Freeport McMoran, Inc., 120 F.3d
50, 53 (5th Cir. 1997)). The test proposed by petitioner, how-
ever, is not the test required by the ADA or its imple-
menting regulations. The pertinent inquiry under the ADA
is whether one or more major life activities is substantially
limited, see Bragdon, 118 S. Ct. at 2202, not whether the
person is able to overcome those limitations when per-
forming other activities. Taken to its logical conclusion, peti-
tioner’s test would justify the conclusion that a particularly
vigorous person who uses a wheelchair is not disabled
because he or she can drive a car, complete a marathon, live
independently, and perform other activities as effectively as
a person without mobility impairments. Title I of the ADA
was premised in part on the principle that individuals with
disabilities can overcome them to perform many activities
competently and effectively, if employers will only give them
the chance to do so. The fact that an individual can function
well in a wide range of activities, therefore, cannot be the
See, e.g., H.R. Rep. No. 485, 101st Cong., 2d Sess., Pt. 2, at 46 (1990)
(House Labor Rep.) (“How maay well educated and highly capable people
with disabilities must sit down at home every day, not because of their
lack of ability, but because of the attitudes of employers, service pro-
viders, and government officials?”) (quoting testimony before House Sub-
committee on Select Education, Ser. No. 101-56, August 28, 1989, at 67.)
15
basis for excluding that individual from the class protected
by the statute.
B. The Court Of Appeals’ Ruling On Respondent's
Alternative Claim That He Was “Regarded As” Dis-
abled Was Not Challenged By The Petition For
Certiorari And Is Not Properly Before This Court
1. The petition for a writ of certiorari sought review on
one and only one question concerning whether respondent is
a person with a disability: “[wJhether a monocular individual
is ‘disabled’ per se, under the Americans with Disabilities
Act (“ADA”) 42 U.S.C. § 12112(a) (1994).” Pet. i. It is quite
clear, for two reasons, that that question brought the Ninth
Circuit’s “actual disability” analysis under 42 U.S.C.
12102(2)(A)—not its “regarded as” holding under 42 U.S.C.
12102(2)(C)—before this Court.
First, the body of the petition argued only that the Ninth
Cireuit had held that a monocular driver has a “per se”
actual disability, see Pet. 15-16, and that such a holding con-
flicted with the decision of the Fifth Circuit in Still v.
Freeport McMoran, Inc., 120 F.3d 50 (1997), see Pet. 16. The
petition presented no argument or discussion whatsoever
concerning the Ninth Circuit’s “regarded as” holding.
Second, the Ninth Circuit’s “regarded as” holding plainly
was not a “per se” holding, and therefore could not have
come within the question presented. The Ninth Circuit’s
entire discussion consisted of its reference to the “regarded
as” provision of the ADA and the statement that “[bJecause
[respondent] has presented evidence showing that one of
[petitioner’s] managers described him as ‘blind in one eye or
legally blind,’ he has established a genuine issue as to
whether his employer believed he was disabled.” J. A. 237.
The Ninth Circuit’s ruling was thus based on an inference
that could be drawn from a particular statement of peti-
tioner’s manager, and it could not be reasonably understood
16
to be a holding that people with monocular vision are “per
se” regarded as disabled.
2. Petitioner’s brief on the merits (Br. i) adds a new
question to those presented in the petition: “Whether a
remark that a monocular driver is blind in one eye supports a
claim that an employer regards that individual as disabled
under the ADA.” Under Rule 14.1(a) of the Rules of this
Court, “[o}nly the questions set out in the petition, or fairly
included therein, will be considered by the Court.“ See also
Sup. Ct. R. 24.1(a). Because the petition for certiorari in this
case did not present any question concerning the court of
appeals’ “regarded as” ruling, and because no such question
is fairly included in the questions presented, this Court
should not reach respondent’s challenge to the court of
appeals’ “regarded as” ruling." We nonetheless briefly ad-
dress the merits of petitioner’s argument.
* Amicus United Parcel Service argues (Br. 20) that the court of
appeals’ “regarded as” holding “is dependent on the court’s initial con-
clusion that monocular vision constitutes a disability per se.” Even if it
were so dependent, that would not alter the fact that no question con-
cerning the court of appeals’ “regarded as” holding is properly before this
Court. In any event, the court of appeals’ “regarded as” holding was not
“dependent” on any earlier part of its analysis. Instead, it rested on the
evidence that respondent's supervisor said, inter alia, that respondent
was “legally blind.” If viewed in the light most favorable to respondent,
that evidence would certainly be sufficient to raise an inference that the
supervisor regarded him as disabled, 1e. substantially limited in the
major life activity of seeing, regardless of whether monocular vision con-
stitutes an actual disability, either per se or on the facts of this case. Thus,
the court of appeals’ “regarded as” holding is truly, as the court of appeals
stated, an “alternative ground,” J.A. 236, and it stands entirely independ-
ent of the court of appeals’ “actual disability” discussion.
10 The Ninth Circuit's holding concerning respondent's “regarded as”
disability was sufficient to Support its judgment that petitioner could not
be granted summary judgment on the ground that respondent is not
disabled. That would ordinarily provide a powerful reason for this Court
not to reach even the question whether respondent had an “actual”
disability. By not including any such argument in his brief in opposition,
17
3. An individual is “disabled” under the ADA not only if
the individual has an impairment “that substantially limits
one or more of the major life activities of such individual,” 42
U.S.C. 12102(2)(A), but also if the individual is “regarded as
having such an impairment,” 42 U.S.C. 12102020). The
“regarded as” provision reflects Congress’ concern with pro-
tecting persons with disabilities from the “effects of errone-
ous but nevertheless prevalent perceptions” about disabling
conditions. See School Bd. v. Arline, 480 U.S. 273, 279
(1987). The record in this case contains sufficient evidence
that respondent regarded petitioner as having an impair-
ment (his impaired vision) that substantially limited peti-
tioner in the major life activities of seeing and working.
a. Because there is no dispute that petitioner was aware
of respondent’s vision impairment, the sole remaining ques-
tion is whether petitioner viewed that impairment as sub-
stantially limiting one of his major life activities. Franklin
Delano Riddle, the manager who made the decision to fire
respondent, stated that respondent was “legally blind, or
blind in one eye.” J.A. 341. Taken in the light most favor-
able to respondent, this statement indicates that Riddle
believed that respondent was “legally blind.” The fact that
an employer regards an employee as “legally blind” is ample
to support an inference that the employer regards the
employee as substantially limited in the major life activity of
seeing. See Norcross v. Sneed, 755 F.2d 113 (8th Cir. 1985)
(legal blindness is a handicap under the Rehabilitation Act).
Petitioner argues (Br. 28) that there is no causal connec-
tion between Riddle’s statement and the decision to
terminate respondent. Whether petitioner fired respondent
because it regarded him as “legally blind,” however, con-
however, respondent appears to have waived any argument that the
Court should not reach the actual disability“ issue. See Sup. Ct. R. 15.2.
This Court of course retains the discretion to decline to reach the “actual
disability” issue.
18
cerns whether discrimination has occurred under 42 U.S.C.
12112, not whether he was “regarded as” disabled under 42
U.S.C. 12102(2)(C). In any event, such questions of causality
must be resolved at trial. The court of appeals correctly held
that Riddle’s statement is sufficient to raise a genuine issue
of material fact on the “regarded as” issue."
b. Alternatively, there is sufficient evidence that peti-
tioner regarded respondent as substantially limited in the
major life activity of working. EEOC regulations provide
that a person is substantially limited in the ability to work
if the person is “significantly restricted in the ability to per-
form either a class of jobs or a broad range of jobs in various
classes as compared to the average person having compar-
able training, skills and abilities.” 29 C.F.R. 1630.2(j)(3)(i).
The regulations add that At he inability to perform a single,
particular job does not constitute a substantial limitation in
the major life activity of working.” Ibid.”
Viewed in the light most favorable to respondent, the
record demonstrates that petitioner regarded respondent’s
visual impairment as preventing him from safely performing
any job that required DOT certification. See J.A. 345, 396.
DOT certification is necessary for “all employers, employees,
and commercial motor vehicles, which transport property or
passengers in interstate commerce.” 49 C.F.R. 390.3(a).
For similar reasons, petitioner's argument (Br. 26-27) that it could
not have regarded respondent as substantially limited in the ability to see
because it later offered him a position as a tire mechanic raises factual
questions that cannot be resolved on summary judgement. Among other
things, the offer came long after the termination, see J.A. 395, and
therefore may be of quite limited value in assessing how Riddle regarded
respondent at the time that he fired him.
2 As we explain in our brief (at 13-14) as amicus curiae in Sutton v.
United Air Lines, No. 97-1943, the “class of jobs or broad range of jobs in
various classes” requirement was not intended to impose an onerous
burden on plaintiffs, but merely to ensure that the limitation on working is
not trivial or insubstantial.
19
Thus, there is evidence that petitioner regarded respondent
as restricted from either a “class of jobs or a broad range of
jobs in various classes,” 29 C.F.R. 1630.2(j)(3)(i), namely,
most of the truck driving jobs for which respondent was
trained, and hence substantially limited in the major life
activity of working. Accordingly, the record in this case
precludes Summary judgment for petitioner on the question
whether respondent was “regarded as” disabled.
II. PETITIONER WAS NOT ENTITLED TO SUM-
MARY JUDGMENT ON THE GROUND THAT RE-
SPONDENT, AS A RESULT OF HIS MONOCULAR
VISION, WAS NOT QUALIFIED TO DRIVE A
TRUCK FOR PETITIONER
Petitioner argues that the district court correctly granted
it summary judgment on the ground that, assuming respon-
dent was disabled, his monocular vision rendered him not
“qualified” to serve as a truck driver for petitioner. To the
contrary, there are serious issues of material fact that
preclude a grant of summary judgment to petitioner on that
ground.
A. An Employer May Not Employ Qualification Stan-
dards That Tend To Screen Out Disabled Persons
Unless Those Standards Can Be Justified Under The
ADA
1. Title I of the ADA provides that Inlo covered entity
shall discriminate against a qualified individual with a
disability.” 42 U.S.C. 12112(a). The Act provides that “the
term ‘discriminate’ includes * * * using qualification
standards * * * that screen out or tend to screen out an
individual with a disability * * unless the standard..
as used by the covered entity, is shown to be job-related for
the position in question and is consistent with business
necessity.” 42 U.S.C. 12112(b)(6). Correspondingly, the Act
provides that Ailt may be a defense to a charge of
20
discrimination * * * that an alleged application of
qualification standards * * that screen out or tend to
screen out or otherwise deny a job or benefit to an individual
with a disability has been shown to be job-related and con-
sistent with business necessity, and such performance can-
not be accomplished by reasonable accommodation.” 42
U.S.C. 12113(a).
Putting the above provisions together, if a qualification
standard is “job-related” and “consistent with business ne-
cessity” and if its purpose cannot “be accomplished by reas-
onable accommodation,” then its use by an employer to
screen out persons with disabilities is permissible under the
ADA. But if a qualification standard is not “job-related” and
“consistent with business necessity,” or if its purpose can “be
accomplished by reasonable accommodation,” then its use by
an employer to screen out persons with disabilities is dis-
crimination under the ADA and is illegal.
2. Petitioner argues (Br. 33) that it “is not required to
justify its decision regarding the stringency of the qualita-
tive standards applied to each position.” That argument is
inconsistent with the statutory provisions cited above, which
plainly require such justification in terms of job-relatedness,
business necessity, and reasonable accommodation. Indeed,
the perfectly general terms of the cited provisions are appli-
cable to all types of selection criteria, including “safety re-
quirements [and] vision or hearing requirements.“ 29
C. F. R. Pt. 1630 App. § 1630.10 (emphasis added). The core
purpose of the ADA “to ensure that individuals with dis-
abilities are not excluded from job opportunities unless they
are actually unable to do the job,” ibid., can be accomplished
only by requiring justification for qualification standards
that tend to screen out disabled persons.
18 See generally, S. Rep. No. 116, 101st Cong., Ist Sess. 37-39 (1989)
(Senate Rep.); House Labor Rep. at 70-72; H.R. Rep. No. 485, supra, Pt. 3,
at 42 (House Judiciary Rep.).
21
Petitioner asserts (Br. 32-33) that it need not justify its
qualification standards because the EEOC has stated that
“[iJt is the employer's province to establish what a job is and
what functions are required to perform it” and that “the
inquiry into essential functions is not intended to second
guess an employer’s business judgment with regard to
production standards * * * nor to require employers to
lower such standards.” The EEOC’s position about essential
functions and production standards, however, is of no rele-
vance to any issue in this case. There is no dispute that, as
petitioner states, “driving a truck in interstate commerce is
an essential function of the truck driving position” at issue
here. Pet. 35. This case accordingly does not present any
question concerning how to identify the essential functions of
a job.“ Nor does this case involve any question regarding
“production standards,” such as the number of hours a day a
driver should drive. The case does squarely present the
question whether petitioner’s qualification standard is, as a
matter of law, job-related and consistent with business
necessity under the ADA.
1 Citing 42 U.S.C. 12111(8), petitioner states (Br. 14) that At he ADA
expressly recognizes that consideration shall be given to the employer's
judgment in determining who is qualified.“ Section 121118), however,
provides that “consideration shall be given to the employer’s judgment as
to what functions of a job are essential,” not who is qualified for a job. See
also 29 C. F. R. 1630.2(n)(1) (defining “essential functions” as “the funda-
mental job duties of the employment position”). If this case did involve a
dispute about the essential functions of a job, it would be significant that
the quoted language requires only that “consideration”—not preclusive
effect—be given to the employer's judgment concerning what job fune-
tions are essential. See Deane v. Pocono Med. Ctr., 142 F.3d 138, 148 (ard
Cir. 1997) (en banc); Stone v. City of Mount Vernon, 118 F.3d 92 (2d Cir.
1997), cert. denied, 118 S. Ct. 1044 (1998); 29 C.F.R. 1630.2(n)\(3)(i)
(“Evidence of whether a particular function is essential includes, but is not
limited to * * * [t}he employer’s judgment as to which functions are
essential.”) (emphasis added).
22
B. The ADA Requires Safety-Based Standards To Be
Shown To Be Necessary To Avoid A Direct Threat To
Health Or Safety
1. The ADA specifically addresses the subcategory of
qualification standards which, like the binocular vision
standard at issue here, are based on a safety rationale. The
Act provides generally that qualification standards “may be
a defense to a charge of discrimination” if they are “shown to
be job-related and consistent with business necessity, and
such performance cannot be accomplished by reasonable ac-
commodation.” 42 U.S.C. 12118(a). The Act farther pro-
vides that such “qualification standards’ may include a re-
quirement that an individual shall not pose a direct threat to
the health or safety of other individuals in the workplace.”
42 U.S.C, 12113(b); see also 29 C. F. R. 1630.2(r). In this con-
text, a “direct threat” means a “significant risk” to the health
or safety of others that cannot be eliminated by reasonable
accommodation. 42 U.S.C. 1211183).
Because of the statutory connection between “qualifica-
tion standards” and the “direct threat” defense, the EEOC
reasonably has concluded that a qualification standard based
on a safety rationale must satisfy the “direct threat” stan-
dards. See 29 C.F.R. Pt. 1630 App. § 1630.15(b) and (c)
(“With regard to safety requirements that screen out or tend
to screen out an individual with a disability or a class of
individuals with disabilities, an employer must demonstrate
that the requirement, as applied to the individual, satisfies
the ‘direct threat’ standard * * * in order to show that the
requirement is job-related and consistent with business
necessity.”). Accordingly, petitioner’s binocular vision quali-
fication standard must satisfy the “direct threat” standard.
We note, however, that it makes little difference in this case
whether the “direct threat” standard or some other explica-
tion of “job-related and consistent with business necessity”
is used. Under any reasonable understanding of “business
necessity,” there remain material issues of fact regarding
whether petitioner’s binocular vision standard is justifiable.
2. As this Court explained in Bragdon, the existence of a
significant risk must be based on medical or other objective
factual evidence. Bragdon, 118 S. Ct. at 2210; see also School
Bd. v. Arline, 480 U.S. at 287-288. Such consideration may
not rely on subjective perceptions, irrational fears, patroniz-
ing attitudes, or stereotypes about the nature or effect of a
particular disability or about disabilities gen- rally. See 29
C.F.R. Pt. 1630 App. § 1630.2(r); Senate Rep. at 27; House
Labor Rep. at 56-57; House Judiciary Rep. at 45-46. More-
over, the determination of whether an individual poses a
safety threat to others requires an individualized assessment
of the indiv‘dual’s present ability to perform safely the
essential functions of the job. 29 C. F. R. 1630.2(r); 29 C. F. R.
Pt. 1630 App. § 1630.2(r). See also Arline, 480 U.S. at 287:
House Labor Rep. at 56. In enacting the ADA, Congress
recognized that employers often wrongly excluded persons
with disabilities from employment because of misplaced
concerns about safety or liability. See House Judiciary Rep.
at 30-31. An employer's subjective belief that a significant
risk exists, even if maintained in good faith, therefore will
not relieve the employer from liability. See Bragdon, 118 8.
Ct. at 2210.
C. Petitioner Was Not Entitled To Summary Judgment,
Because There Were Significant Issues Of Material
Fact Concerning Whether Its Binocular Vision Stan-
dard Was Justified
1. There was substantial evidence in the record that
respondent’s requirement that its truck drivers have binocu-
lar vision does not satisfy the ADA. For example, at the
time respondent was dismissed, DOT had determined that
existing studies did] not provide a sufficient nexus be-
tween the current vision requirements and driving per-
24
formance.” See 57 Fed. Reg. 31,459 (1992). According to
DOT, there was evidence that persons with disabilities learn
to compensate for their disabilities over time. and that past
driving experience can be used to predict future results. 59
Fed. Reg. 50,888 (1994) (describing 1992 decision).
Moreover, respondent’s optometrist testified that,
although stereopsis—the ability to judge depth using both
eyes working together is * * limited to the short
distances rather than the long distances{,] [w]e rely on other
cues for depth at the long-range distances.” J.A. 300. She
went on to describe those cues, including “motion parallax,”
“linear perspective,” “overlay contours,” “distribution of
highlights and shadows,” the “size of known objects,” and
“aerial perspective.” J.A. 301. She also referred to a
scholarly article discussing the issue. J.A. 300. She con-
cluded that “in certain situations like distance viewing,”
“stereopsis * * * [is] not going to be a really particularly
relevant or necessary skill.” J. A. 301.
Finally, respondent presented evidence that he had been
safely driving commercial vehicles since 1979, that his vision
has remained constant, and that he was capable of driving as
well as a similarly situated person with good vision in both
eyes. J. A. 34-36, 286-287, 305-306. Those facts also support
respondent’s position.
2. Petitioner does not seriously dispute the above evi-
dence. Instead, both petitioner and the dissenting judge in
the court of appeals (J.A. 249-253) rest their argument on the
fact that respondent cannot satisfy the DOT vision standards
without obtaining a vision waiver. The fact that respondent
could satisfy federal standards only by obtaining a waiver,
1% DOT also cited a 1982 study it had commissioned concluding that
there was no correlation between accident rates and reduced visual acuity
in drivers under age 54 and only a weak relationship in drivers over 60. 57
Fed. Reg. at 6794 (citing Bartow Associates, Inc., The Monocular Driver:
A Review of Distant Visual Acuity Risk Analysis Data (1982)).
however, is insufficient to establish that petitioner is entitled
to summary judgment on the qualification issue.
a. Under 29 C. F. R. 1630.15(e), it may be a defense to a
charge of discrimination * * * that a challenged action is
required or necessitated by another Federal law or regula-
tion.” At the time petitioner dismissed respondent, respon-
dent had offered to obtain (and ultimately did in fact obtain)
a vision waiver permitting him to obtain DOT certification
despite his failure to satisfy the DOT binocular vision
standard. Because a waiver would render the vision stan-
dard inapplicable to respondent, petitioner’s dismissal of
respondent was not “required or necessitated” by any
“Federal law or regulation.“ “ See 29 C.F.R. Pt. 1630 App.
§ 1630.15(e) (“The employer’s defense of a conflicting
Federal requirement or regulation may be rebutted * * *
by showing that the Federal standard did not require the
discriminatory action, or that there was a nonexclusionary
means to comply with the standard that would not conflict
with [the ADA).”); House Labor Rep. at 74.
The dissenting judge on the court of appeals mistakenly
reasoned that petitioner was acting lawfully because it was
merely “requiring compliance with DOT safety regulations.”
J.A. 251. Because DOT safety regulations permitted respon-
dent to drive with a vision waiver, petitioner may not justify
10 Petitioner does not assert that the delay in obtaining the
certification was a factor in its decision to dismiss respondent. If it made
such a claim, the question would arise whether petitioner was obligated to
permit such a delay as a reasonable accommodation. See 42 U.S.C.
12112(b\5)A) (stating that to “discriminate” under the ADA includes “not
making reasonable accommodations” under specified circumstances); 42
U.S.C. 12113(a) (recognizing defense that employer was applying qualifica-
tion standard where, inter alia, “performance cannot be accomplished by
reasonable accommodation”).
its choice to dismiss respondent on the ground that it was
merely complying with federal safety regulations.
b. Even though the DOT vision standards did not them-
selves require petitioner to dismiss respondent, petitioner
could still employ those standards (or could adopt even more
stringent standards of its own) if it could establish that the
use of such standards satisfied the “direct threat” defense.
The ADA is not intended to prevent employers from guard-
ing against significant health and safety risks that might be
posed by employing particular persons with disabilities. See
Bragdon, 118 S. Ct. at 2210. Moreover, a particular em-
ployer may face conditions that demand stricter safety
standards than those embodied in the DOT regulations. See
JA. 247 n.11." Cf. Bragdon, 118 S. Ct. at 2211 (While the
views of public health agencies are entitled to “special
weight and authorityl, * * * [a] health care professional
n Contrary to the dissenting judge in the court of appeals (J.A. 252),
the analysis is not altered by the fact that the federal waiver program was
an interim measure limited to a small group of drivers as part of a
controlled study to determine whether the regulatory standards should be
changed for all drivers. Nothing in federal law suggests that a waiver is
invalid because it is issued as part of a controlled study.
* The court of appeals erroneously stated (J.A. 248) that “{iJn light of
(employers) from declaring that persons determined by DOT to be capable
of performing the job of commercial truck driver [through the waiver
program) are incapable of performing that job by virtue of their
disability”). Although DOT's views regarding whether those who receive
vision waivers may safely drive commercial vehicles should be afforded
substantial weight, nothing in the ADA precludes an employer from
proving, if it can, that a particular safety standard higher than that
required by DOT would be “job-related and consistent with business
necessity,” ie, would be necessary to avoid a “direct threat” within the
meaning of the ADA. Indeed, DOT regulations expressly permit em-
ployers to establish more rigorous qualifications than those mandated by
DOT. See 49 C. F. R. 390.3(d).
27
who disagrees with the prevailing medical consensus may
refute it by citing a credible scientific basis for deviating
from the accepted norm.”).
It is significant that petitioner’s binocular vision standard
does not recognize DOT-approved waivers, and petitioner's
standard in that respect is stricter than the standard
embodied in DOT regulations. To justify its adoption of that
stricter standard, petitioner may not simply rest on the
similarity between its standard and the basic vision standard
in the DOT regulations. To the contrary, the defense re-
quires all qualification standards imposed by an employer to
satisfy the “job-related and consistent with business ne-
cessity” or “direct threat” requirements. See Senate Rep. at
37 (Among the “three pivotal provisions to assure a fit be-
tween job criteria and an applicant’s actual ability to do the
job [is] * * * [tJhe requirement that any selection criteria
that screen out or tend to screen out [persons with dis-
abilities] be job-related and consistent with business
necessity.”) (emphasis added). Aside from the similarity be-
tween its standard and the basie DOT standard, petiticner
has not offered any basis for a ruling that, as a matter of law,
its vision standard satisfies those requirements.
e. The analysis is not altered by the fact that the DOT
rule instituting the vision waiver program was later vacated
by the D.C. Cireuit in Advocates for Highway & Auto Safety
v. Federal Highway Admin., 28 F.3d 1288 (1994). The court
in Advocates held that the waiver program was invalid
“because the agency lacked the data necessary to support its
determination that the vision waiver program ‘is consistent
with the safe operation of commercial motor vehicles.“
Putting to one side the question whether Advocates was
correctly decided, but see Rauenhorst v. U-.S. Dep't of
Transportation, 95 F.3d 715 (8th Cir. 1996) (reviewing
history of vision waiver program and holding that DOT must
issue waiver to applicant), that holding, in 1994, could not
justify petitioner’s dismissal of respondent in 1993.
28
First, the Advocates decision does not suggest that
petitioner would have been out of compliance with federal
law—or that petitioner would have believed itself to be out
of compliance with federal law—if it accepted a vision waiver
from respondent. Federal regulations, like other sources of
law, are presumed valid until they have been held not to be
so, and the proper method for challenging them is generally
(as in Advocates) by means of an action under the Admini-
strative Procedure Act, 5 U.S.C. 551. As the court of
appeals in this case correctly held (J.A. 242), the D.C.
Circuit’s 1994 decision holding the vision waiver program
invalid in Advocates cannot be used to justify an employment
decision made by petitioner in 1993.“ Cf MeKennon v.
Nashville Banner Pub. Co., 513 U.S. 352 (1995).
Second, the Advocates decision does not suggest that sum-
mary judgment could be granted to petitioner on the ground
that the vision waiver standard was justifiable under the
ADA’s “direct threat” (or “job-related and consistent with
business necessity”) standard. The D.C. Circuit’s decision at
most means that DOT had failed to put in the administrative
record sufficient evidence to satisfy what the court believed
to be DOT’s burden to show affirmatively that the vision
waiver program would not result in “any diminution of
safety resulting from the waiver.” 28 F.3d at 1294 (emphasis
added). The fact that DOT had failed to build an admini-
strative record that satisfied the Advocates court, however
(see note 19, supra), does not mean that the vision waiver
program permitted unsafe individuals to drive commercial
1% Indeed, DOT revalidated the vision waiver program after the
Advocates decision, based in part on evidence that it had gathered in 1992
but not placed in the administrative record. See 59 Fed. Reg. at 50,888.
Thus, the vision waivers it has issued during the program remained valid
until the program ended in 1996. At that time, drivers in good standing,
like respondent, were accorded “grandfather” privileges making the vision
standard in 49 C. F. R. 391.41(b)(10) inapplicable to them in the future, as
long as they satisfy the conditions stated in 49 C. F. R. 391.64(b),
vehicles; it simply meant that DOT in that case had not
justified its conclusion sufficiently to the court. And the fact
that DOT failed to build a record sufficient to show the
Advocates court that monocular drivers admitted to the
waiver program may safely drive commercial vehicles does
not establish that petitioner, in this case, has built a suffi-
cient record to demonstrate that, as a matter of law, mono-
cular drivers holding DOT waivers would pose a direct
threat if permitted to drive commercial vehicles.
Finally, it is significant that petitioner apparently employs
binocular drivers who merely satisfied the minimum federal
standards, but not monocular drivers who, by obtaining
waivers, demonstrated that they satisfied above-minimum
standards in other respects. Vision waivers were available
only to drivers of commercial vehicles who, during the pre-
ceding three years, had no license suspension or revocation,
no involvement in a reportable accident, no conviction for a
disqualifying offense or more than one serious traffic vio-
lation, and no more than two convictions for any other
moving violation in a commercial vehicle. 57 Fed. Reg. at
31,460. In addition, waiver applicants were required, inter
alia, to submit a statement from an optometrist or ophthal-
mologist certifying that they were able to perform the
driving tasks required to operate a commercial motor
vehicle. Once admitted to the program, drivers had to be
examined by an optometrist or ophthalmologist each year
and to submit the result to the Federal Highway Admini-
stration. Ibid. By contrast, as far as the record in this case
shows, the drivers petitioner would have employed in their
place would have had less driving experience and worse
driving records than those who qualified for vision waivers,
and they would not have had the same certifications and
annual check-ups by optometrists and ophthalmologists to
ensure that their vision had not worsened.
In these circumstances, notwithstanding the Advocates
decision, petitioner’s requirernent of binocular vision is valid
30
only if it could justify employing the binocular drivers who
satisfied the minimum standards rather than monocular
drivers (like respondent) who had the added safety assur-
ances provided by their satisfaction of the more stringent
standards of the vision waiver program. Although it is
possible that petitioner could satisfy that burden, nothing in
the record would permit a court to conelude that, as a matter
of law, petitioner has done so.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
BILL LANN LEE
C. GREGORY STEWART Acting Assistant Attorney
General Counsel General
PHILIP B. SKLOVER BARBARA D. UNDERWOOD
Associate General Counsel Deputy Solicitor General
LORRAINE C. DAVIS JAMES A. FELDMAN
Assistant General Counsel Assistant to the Solicitor
ROBERT J. GREGORY General
Attorney JESSICA DUNSAY SILVER
Equal Employment TIMOTHY J. MORAN
Opportunity Commission
MARCH 1999
Attorneys
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.