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

No. 98-591

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

ALBERTSONS, INC.,

Petitioner,

v.

HALLIE KIRKINGBURG,

Respondent.

On Wnit Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF AMICUS CURIAE OF

UNITED PARCEL SERVICE OF AMERICA, INC.,

IN SUPPORT OF PETITIONER

Of Counsel: WILLIAM J. KILBERG

PAMELA L. HEMMINGER Counsel of Record

PATRICIA S. RADEZ THOMAS G. HUNGAR

GIBSON, DUNN & CRUTCHERLLP Ross E. DAVIES

One Montgomery Street GIBSON, DUNN & CRUTCHER LLP

Telesis Tower 1050 Connecticut Avenue, N.W.

San ~~ cisco, California 94104 Washington, D.C. 20036

(415) 393-8200 (202) 955-8500

Counsel for Amicus Curiae

QUESTION PRESENTED

Amicus curiae United Parcel Service of America, Inc.,

will address the following question:

Whether the court of appeals erred in holding that

monocular vision constitutes a “disability” under the

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........:+:s:ssssssssrsesnsnsesnsnsanenensnnsnnnnens i

TABLE OF AUTHORITIES. ........:::cesessssssensnnsesrsrnennnennenanens iv

INTEREST OF AMICUS CURIAE .....-scssessessesrerenneennnenenennenes 1

SUMMARY OF ARGUMENT.....:::::::sssseesesssessnsnentnenanansnnnnes 2

ARGUMENT. ....::-cssesssesssessecsssenrssnnsssensssnsssensssnsssssesanensnnnannnees 4

I. The Plain Language Of The Act Compels Re-

jection Of The Reasoning Utilized By The

Court Of Appeals In Concluding That Mono-

cular Vision Is A “Disability” ...........csesseseeeeserennees 4

A. The Court Of Appeals Erred In Holding

That Individuals Who Perform Activities

In A “Different Manner” Are Disabled..............-. 4

B. The Court Of Appeals Erred In Failing To

Require Respondent To Make An Indivi-

dualized Showing That Monocularity Sub-

stantially Limits His Ability To See...........+-+-00 8

C. The Court Of Appeals Failed To Give Pro-

per Weight To Respondent’s Ability To

Compensate For His Impairment ............-+-+-+-+++ 10

II. Respondent’s Monocular Vision Does Not

“Substantially Limit” His Major Life Activity

A. According To His Own Statemeats And

Other Evidence, Respondent Is Not Dis-

B. Monocularity Is Not A Disabling Condi-

CAOED.......cocoocccvecesosoencocosesecsnossossopeqseseeseeesSesCeSeesenens 13

***

C. Scientific Studies Show That

8 Monocular

Vision Raises Serious Safety Concerns In

The Context Of Commercial Driving

a en

eee ee eee

SOOO C OHH THO Eee Ee eEeeeeese

Tee eee eee

B. Respondent Was Not “Regarded As” Sub-

oe Limited In A Major Life Activ-

l. Respondent Was Not Regarded As Sub-

stantially Limited In The Major Life

Activity Of Seeing ..............cccecescesessssss.....

2. Respondent Was Not Regarded As Sub-

stantially Limited In The Major Life

Activity Of Working

CONCLUSION

ie

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COPTER eee eee ee eee eee

eee eee eee

iv

TABLE OF AUTHORITIES

CASES Pages(s)

Advocates for Highway & Auto Safety v.

FHWA, 28 F.3d 1288 (D.C. Cir. 1994) .....ccceceeeeeees 19

Arnold v. United Parcel Service, Inc.,

136 F.3d 854 (Ast Cir. 1998) ........ccseesereersernnennenenenes 7

Aucutt v. Six Flags Over Mid-America, Inc.,

85 F.3d 1311 (8th Cir. 1996) ........cccecceecernereeeeeenenees 22

Baert v. Euclid Beverage, Ltd., 149 F.3d 626

(7th Cir. 1998) .....cccccsssessesnssssnsnnensnnsnssnenssesnennensenensess 7

Bancale v. Cox Lumber Co., No. 97-113-

CIV-FTM-25D, 1998 WL 469863 (M.D.

Fla. May 18, 1998) ........s.ssssssssseessrssnnensnenansnennsnennenes y)

Bragdon v. Abbott, 118 S. Ct. 2196 (1998) ....... 4, 25,27

Bridges v. City of Bossier, 92 F.3d 329, 334

(Sth Cir. 1996), cert. denied, 519 U.S.

1093 (1997) ...ccscccsssesesssreseesesensnensnsnsnsnsnsencssssnsnenenens 29

Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837

(1984) ....ecsccccsesncssneressenensessensnssnsnssnenssssnsnenssnsnsansneneees 6

Cline v. Fort Howard Corp., 963 F. Supp. |

1075 (E.D. Okla. 1997) ....-.-sessesesesessernenenenenrnenenens 9-10

Colwell v. Suffolk County Police Dep't,

158 F.3d 635 (2d Cir. 1998) ....-.ccecceseeseerersernnnenennnnens 7

Cook v. State of Rhode Island, 10 F.3d 17

(Ast Cir. 1993) ......cecccserecsesnssesnesnssnsnesnsnssnensaensnnsnenses 22

Daley v. Koch, 892 F.2d 212 (2d Cir. 1989) .......+--+++++ 29

Deas v. River West, L.P., 152 F.3d 471

(5th Cir.), pet. for cert. filed, No. 98-916

(U.S. Dec. 2, 1998).......ssecsenssesnssesnsnsnesnsnensnennsnsnansnsess 7

Vv

Doane v. City of Omaha, 115 F.3d 624

(8th Cir. 1997), cert. denied, 11

693 (1998) , 1188S. Ct.

Dole v. United Steelworkers of America

494 U.S. 26 (1990) sd

Duncan v. State of Wisconsin t

Health and Family en Fad

1999 WL 44845 (7th Cir. Feb. 3, 1999) ..0......cccceseeses 7

EEOC v. United Parcel Service, Inc., No. C97-

PPO ee PREY GIES erteteretinecntteinepstnidtonencnepaccinit 2,14

EEOC v. Arabian American Oil Co.. 499

U.S. 244 (1991) ceccececcecccsssssese Be Sten aia 27

Foreman v. Babcock & Wilcox Co., 117 F.3d

800 (Sth Cir. 1997), cert. denied, 118 S.

a ah ae 22

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

a EE: Raia ey icant a 22, 25

General Electric Co. v. Gilbert, 4

TS” “aie aa ination ds eae i alelabe 27

Gordon v. E.L. Hamm & Assocs., Inc., 100

F.3d 907 (11th Cir. 1996), cert. denied

118 S. Ct. 630 (1997) ,

Halperin v. Abacus Tech. Corp., 128 F

191 (4th Cir. 1997) 1 it dias See ee ae 7

Harris v. H & W Contracting Co., |

516 (11th Cir. 1996) .............. Sveriegy ine 7

Hoppes v. Commonwealth of Pa., No. Civ.A

1:CV-97-1959, 1998 WL 9654107

Pa. Dec. 15, 1998) ccccsscsvececsssssseeson — a ore 9

INS v. Cardoza-Fonseca, 480 U.S. 421

IO athe dla iacenieniartaitntariiicindensiiiisastbian daessnsinsinntadiead 6

Jasany v. United States Postal Serv., 755

eb D . ee eeee 9, 26

vi

Katz v. City Metal Co., 87 F.3d 26 (ist Cir.

199G).....2+-cscseccsceessesesecesssenisansncseiinencsnoonssoeoseseconossosones 8

Kelly v. Drexel Univ., 94 F.3d 102 (3d Cir.

BODE) ...ccocscoccssssesssensnecevencsscovenseossssoscessesessecssessesteeses 22

Matczak v. Frankford Candy & Chocolate

Co., 136 F.3d 933 (3d Cir. 1997) ....ccccccceeeeeseenenernnees 8

McKay v. Toyota Motor Mfg., U.S.A., Inc.,

110 F.3d 369 (6th Cir. 1997) ......cccccccceeeseeereneeees 7,29

Murphy v. United Parcel Service, No. 97-

1992 (cert. granted, Jan. 8, 1999) ........ssseceeerenrerees 2

Olson v. General Elec. Astrospace, 101 F.3d

947 (3d Cir. 1996) ......cccccssreresreresseensnsenenersenesrersesssnes 7

Overturf v. Penn Ventilator Co., 929 F.

Supp. 895 (E.D. Pa. 1996) .........-ssssesssnsnsesernennernsnnens 10

Pack v. Kmart Corp., F.3d 1999

WL 51882 (10th Cir. Feb. 4, 1999) .......ssssssssssssssesee 7

Patterson v. Chicago Ass'n for Retarded Citi-

zens, 150 F.3d 719, 725 (7th Cir. 1998)........c0eeeeeerenees 29

Perkins v. St. Louis County Water Co., 160

F.3d 446 (8th Cir. 1998) .......:ccccssesssrsesserssensensnnnnnnnes 7

Rauenhorst v. United States Dep't of

Transp., 95 F.3d 715 (8th Cir. 1996) ........0ceseeereeeeees 20

Reeves v. Johnson Controls World Servs.,

Inc., 140 F.3d 144 (2d Cir. 1998) .........ccecerereereeees 22

Rizzo v. Children’s World Learning Ctrs.,

Inc., 84 F.3d 758 (Sth Cir. 1996) ........c-ccccceeseerseernenes 8

Ross v. Indiana State Teacher's Ass'n Ins.

Trust, 159 F.3d 1001 (7th Cir. 1998). .........ccceeeeeeeres 8

Shalala v. Guernsey Mem. Hosp., 115 S. Ct.

1232 (1995) ....c.ceccococecscsrsrensererserensnsassssesscsnsnssnssneesees 27

School Bd. of Nassau County v. Arline, 480

U.S. 273 (1987) ...cececsccossvsssesenserenensensesenssrssssnsensenses 24

vii

Skorup v. Modern Door C.

rds 4 r Corp., 153 F.3d 512

RE SETS 22

ary to" Seale auelead a ;

oe gana ee a ,

mr) - yoewcomanchetecntete Ie

Sutton v. United Air Lines, Inc., 130 F.3d

893 (10th Cir. 1997), cert. granted, No.

97-1943 (U.S. Jan. 8, 1999) ooo ccccecccossesseecee 22, 30

Sweet v. Electronic Data Sys., Inc., No. 95

Civ. 3987 (MBM), 1996 WL 20447]

Me Me ce te 10

oe v. Holy Family Hosp., 121 F.3d

537 (9th Cir. 1997) ! 22, 29

Torres v. United States Postal Serv., 610 F.

a. Sire Cees ON, POO a 26

Tudyman v. United Airlines, 608 F. Supp.

739 (C.D. Cal. 1984) woos dowd Sy Wate! 25-26

United States v. Wilson, 503 U.S. 329

REST ENR a oe ean ae eae 11

Walker v. Aberdeen-Monroe County Hosp.

838 F. Supp. 285 (N.D. Miss. 1993)... 10

Wernick v. Federal Res. Bank of N.Y.. 91

F.3d 379 (2d Cir. 1996) ...... y the Smt aii TS Wink 8

Witter v. Delta Air Lines, Inc., 138 F.3d

SA I ay MIND iciinccsctinceseictsbesecciessteceSeciece 28, 29

STATUTES

GN ROR ieee 13

ee Ws 8 CRIT knelt 13

42 U.S.C. § 12102(2)(A) .....cccccccceseeeeeees 3, 4, 5, 8, 11,21

42 U.S.C. § 12102(2)(C) -eeesecsccccssensrsnsnsnnenessesee 4,21, 22

42 U.S.C. § 2212) «a aeeevvvesecesersereenosnunnnnvennnnnenesonosoes 13

42 U.S.C. § 1211 2(D)(1) .scccccscssesssonsnsnnsnnnnnsnresseeorosnn 13

Pov it Voll ||| | :emsmeeNeNtnnNENa 19

29 CFR. § 1630.2(j)(1)(di).ssssssssssssssssnnenceessssnsnnnsnneneens 6

29 CFR. § 1630.2(j)(3)(i)ooossessssssssssssssssssssnsnnnnnnnsee 27-28

29 CER. § 1630.2(j)(3)(Hi)(B) ...sessssssssssssssnnsnnnnnnsnnnnses 28

29 CER. § 1630.2(j)(3)(ii)(C) -ssescssesensssnnsnnnnnnnnnnnrenen 28

29 CFR. Pt. 1630, App., Section 1630.2(j) ......:-++ 27

AD CER. © IOV \sieessersinorecenesetsecsoetsinetionnes 16, 17, 20

59 Fed. Reg. 59,386 (1994) ....sssssssssssenseceeseennssssseessen 18

61 Fed. Reg. 13,338 (1996) ....sssscsssssssssseessseesesen 19, 20

MISCELLANEOUS

iola Cavallo and Michel Laurent, Visual

"Gennes and skill level in time-to-

collision estimation, 17 PERCEPTION 623 ale

(1988) ....sccesscsssssssesssersensensosensensnenssnennensensrnssnsnsenees

wrence E. Decina et al., Visual Disorders

— Commercial Drivers (National Tech. ws

Info. Serv. (“NTIS”) Nov. 1991)....-s:ssssseseseseeesersnsers

r timat-

R. Gray and D. Regan, Ac of Es

ing Time to Collision using Binocular ane

Monocular Information, 38 VISION RE:

Sr 18

499 (1998) ....ecssresesssessenessnenennsersnsnsnnanensansensenese®

R. Griffin et a/l., BINOCULAR

ng DIAGNOSIS AND VISION ”

THERAPY (3d ed. 1995) .....-sesesesesesssesesnenenennnserenenenes

obert L. Henderson and Albert Burg, The

4 Role Of Vision And Audition In Truck And an

Bus Driving (NTIS Dec. 1973) --v-v-s-ssserevereerersnenrnes

ix

Robert L. Henderson and Albert Burg,

Vision And Audition In Driving

(NTIS Nov. 1974)

John V. Linberg et al., Recovery After Loss

of an Eye, 4 OPHTHALMIC PLASTIC &

RECONSTRUCTIVE SURGERY 135 (1998)

Cecilia Y. Perez, The Visual Ramifications

Of Losing An Eye (Part II), 9 J. Vision

REHAB. 12 (1995)

William Prinzmetal and Laurie Gettleman,

Vertical-horizontal illusion: One eye is

better than two, 53 PERCEPTION &

PSYCHOPHYSICS 81 (1993)

D. Regan and Suneeti Kaushal, Monocular

Discrimination in the Direction of Motion

in Depth, 34 VISION RES. 163 (1994)

Patrice N. Rogers et al., ACCIDENT AND

CONVICTION RATES OF VISUALLY-

IMPAIRED HEAVY- VEHICLE OPERATORS

(Cal. DMV, Rept. No. RSS-87-111, Jan.

1987)

Patrice N. Rogers and Mary K. Janke,

po ray Of Visually Impaired Heavy

Vehicle Operators, 23 J. SAFETY

RESEARCH 159 (1992)

Jerry Sullivan, Lady Bengal’s Vision To

el, Help Others Puts Her Life In

Focus, BUFFALO NEWS, Dec. 10, 1998.................... 15

Dick Weiss, Gator More Than Meets The

Eye, N.Y. DAILY NEWS, Dec. 24, 1998

x

Jerry Wizig, Day Turns Out As Well As

yi Pee Could Envision, HOUSTON CHRON..,

Apr. 21, 1996

BRIEF AMICUS CURIAE OF

UNITED PARCEL SERVICE OF AMERICA, INC.,

IN SUPPORT OF PETITIONER

United Parcel Service of America, Inc. (“UPS”) re-

spectfully submits this amicus curiae brief in support of

petitioner on the question whether monocular vision

constitutes a “disability” under the Americans with Dis-

abilities Act (“ADA”).!

INTEREST OF AMICUS CURIAE

UPS is one of the largest employers in the United

States, with nearly 300,000 employees in all 50 states

and every territory. Because of the size and scope of its

workforce, UPS has faced the difficult issue of applica-

tion of the Americans with Disabilities Act in almost

every employment context. That difficulty has been

compounded by the unduly expansive interpretations of

the ADA adopted by some lower courts, which if not

corrected will result in extending the coverage of the

ADA to far more Americans than can be justified by a

common sense reading of the statutory text.

Because it operates in every jurisdiction and venue in

this Nation, UPS is vitally concerned with the develop-

ment of this new federal statute and with the adoption of

uniform and statutorily permissible approaches to its

application. UPS often speaks out on issues of concern

to American employers before Congress, regulatory

1 Pursuant to this Court’s Rule 37.6, UPS states that this brief

was not authored in whole or in part by counsel for any party,

and that no person or entity other than UPS or its counsel made

a monetary contribution to the preparation or submission of this

brief.

2

agencies, and the federal courts, and is well-situated to

present the perspective of large American employers re-

garding employment law issues.

UPS also has a specific interest in the interpretation of

the ADA announced by the Ninth Circuit in this case.

UPS is the defendant in a nationwide lawsuit brought by

the Equal Employment Opportunity Commission

(“EEOC”) on the issue of monocular vision under the

ADA, EEOC v. United Parcel Service, Inc., No. C 97-

961-FMS (N.D. Cal.). In addition, UPS is the respon-

dent in another case currently pending before this Court,

Murphy v. United Parcel Service, No. 97-1992 (cert.

granted Jan. 8, 1999), which presents related questions

concerning the scope and meaning of the ADA’s defini-

tion of “disability.” ‘The resolution of these questions

will have a major impact on the ultimate scope of the

obligations and burdens imposed by the ADA on UPS

and other American businesses.

For all these reasons, UPS has a substantial interest in

the questions presented in this case. Accordingly, UPS

respectfully submits this amicus curiae brief to demon-

strate the erroneous nature of the decision below, and to

provide the Court with a more complete understanding

of the nature of monocular vision and its minimal impact

on the lives of monocular individuals. Both petitioner

and respondent have consented to the filing of this brief.

SUMMARY OF ARGUMENT

I. The court of appeals erroneously adopted a defini-

tion of disability under the ADA that sharply conflicts

with the plain language of the statute. The court essen-

tially dispensed with the statutory requirement that an

impairment must be “substantially limit[ing]” before it

will constitute a disability, and instead held that an im-

pairment is disabling whenever it causes the a,

individual to perform a major life activity in a “different

manner” than unimpaired individuals. The court’s

“different manner” test is inconsistent with, and there-

3

fore precluded by, the statutory text.

The court of appeals also erred in purporting to make

a per se determination that monocularity is a disability

under the ADA and in failing to require respondent to

meet his burden of identifying individualized proof that

his monocularity substantially limits his major life ac-

tivity of seeing. The court’s per se approach to this issue

is inconsistent with the ADA’s definition of disability,

which expressly contemplates an individualized deter-

mination: ““{D)Jisability’ means with respect to an indi-

vidual . . . a physical or mental impairment that substan-

tially limits . .. the major life activities of such individ-

ual.” 42 U.S.C. § 12102(2)(A) (emphasis added).

The court of appeals compounded these errors b

predicating its finding of disability in part on the fact

that respondent has developed the “subconscious” ability

to compensate for and mitigate the effects of his im-

pairment. Far from justifying a finding of disability, the

ability to minimize the adverse effects of an impairment

instead demonstrates that the impairment is not disa-

bling, because the disability inquiry requires a real-world

examination of the actual present effect of the impair-

ment. Accordingly, the court of appeals’ interpretation

of the ADA’s definition of “disability” is incorrect, and

should be rejected.

Il. Under a proper understanding of the definition of

“disability,” it is clear that respondent (like other indi-

viduals with monocular vision) is not disabled. The rec-

ord in this case demonstrates that respondent’s monocu-

larity has not had a substantial impact on his ability to

see, and that respondent has developed “subconscious”

and permanent internal mechanisms for coping with the

effects of his impairment. The scientific and medical lit-

erature regarding monocular vision indicates that the

remarkable adaptability of the human mind and body en-

ables wena gp to conduct their lives in

ways that are, for virtually all practical purposes, indis-

tinguishable from those of the average person with bin-

4

ocular vision. Accordingly, the conclusion is inescap-

able that respondent is not “substantially limit[ed]” in

the major life activity of seeing.

III. The court of appeals also erred in concluding that

respondent could be found to be disabled under 42

U.S.C. § 12102(2)(C) on the ground that he was

“regarded as” disabled. That holding appears to be

predicated on the erroneous assumption that monocular-

ity is a disability per se, and accordingly cannot with-

stand scrutiny. In any event, respondent has not met his

burden of proving that his monocular vision substan-

tially limits the major life activities of seeing or working,

and there is no evidence that Albertsons had a different

perception. Albertsons’ mere awareness of respondent’s

impairment is not sufficient to show that Albertsons

“regarded” respondent as disabled.

ARGUMENT

I. The Plain Language Of The Act Compels Re-

jection Of The Reasoning Utilized By The

Court Of Appeals In Concluding That Mo-

nocular Vision Is A “Disability”

A. The Court Of Appeals Erred In Holding

That Individuals Who Perform Activities In

A “Different Manner” Are Disabled

Under the ADA, an individual is disabled if he or she

has “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). In keeping with

the statutory text, this Court has held that an impaired

individual may properly be characterized as disabled if

“significant limitations result from the impairment.”

Bragdon v. Abbott, 118 S. Ct. 2196, 2206 (1998)

(emphasis added).

ite the statute’s explicit command, the court of

appeals essentially dispensed with the requirement that

5

an impairment must be “substantially limit{ing]” in order

to constitute a disability. Instead, the court held, respon-

dent’s monocular vision is a disability merely because it

causes him to see in a different manner than other indi-

viduals: “Although [respondent’s] brain has developed

subconscious mechanisms for coping with this visual

impairment and thus his body compensates for his dis-

ability, the manner in which he sees differs significantly

from the manner in which most people see.” Pet. App.

14a (emphasis in original); see also id. at 14a-15a

(“[Respondent] sees using only one eye; most people see

using two. Accordingly, ... he is disabled.”) (emphasis

added); id. at 15a n.4 (test “is whether . . . the individual

is required to perform a major life activity in a different

manner from other persons”) (emphasis added).

The court of appeals clearly erred in resting its dis-

ability holding on the fact that respondent sees in a dif-

ferent manner than other individuals. The statutory text

expressly limits the category of “disabilities” to those

impairments that “substantially limit[]” one or more

major life activities of the impaired individual. 42

U.S.C. § 12102(2)(A). Plainly, not every “difference”

amounts to a substantial limitation. Indeed, many

“differences” in the manner of performing particular ac-

tivities are not limiting at all, and others are not substan-

tially limiting because they do not restrict the affected

individual’s ability to perform the activity in any essen-

tial or important way. An individual who has only one

kidney might be required to observe certain dietary re-

strictions and thus change her manner of “eating,” but

she would not be substantially limited in any meaningful

sense. A person with a mild but permanent leg injury

might slightly favor his right foot when he walks, with-

out suffering any meaningful diminution in his ability to

walk or perform other activities. These alterations may

be imperceptible to others and of little or no conse-

quence to the individuals themselves. Yet under the

court of appeals’ reasoning, these individuals would be

“disabled” because their impairments cause them to per-

6

form major life activities in a “different manner from

other persons.” Pet. App. 15a n.4.

The court of appeals suggested that its “different

manner” test was compelled by the EEOC’s regulations

interpreting the ADA, which define “substantially lim-

its” to mean “(significantly restricted as to the condi-

tion, manner or duration under which an individual can

perform a major life activity as compared to ... the av-

erage person in the general population.” 29 C.F.R.

§ 1630.2(j)(1)(ii). Focusing exclusively on the regula-

tory reference to the “manner” of performing a major

life activity, the court concluded that any variation in the

manner by which an impaired individual performs a

major life activity necessarily satisfies the regulatory

definition. Pet. App. 14a-15a.

Contrary to the court of appeals’ reasoning, the EEOC

regulations do not justify the court’s adoption of a

“different manner” test. In the first place, the regula-

tions are simply beside the point, because the text of the

ADA unambiguously precludes the court’s interpretation

of the statute. No mere administrative interpretation can

override a clear statutory command. See, e.g., Dole v

United Steelworkers of America, 494 U.S. 26, vo (1990)

(where “the statute, as a whole, clearly yg Con-

gress’ intention, we decline to defer to [the agency’s]

interpretation”); INS v. Cardoza-Fonseca, 480 U.S. 421,

448 (1987); Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-43 (1984).

In any event, the EEOC regulations do no ty mgs

compel the court of appeals’ “different mann

placing sole emphasis on the word “manner” (Pet. App.

14a), the court mistakenly overlooked the

quirement that the individual’s manner of performing the

relevant activity must be “significantly restricted” before

a finding of disability can be made. 29 C.F.R.

§ 1630.2(j)(1)(i) (emphasis added). As a result, the

court of appeals’ disability determination draws no sup-

7

port from, and in fact conflicts with, the regulations on

which the court relied.

Not isingly, the “different manner” test is incon-

sistent with the analysis employed by the overwhelming

—— of lower courts that have considered the ADA’s

definition of disability.2 This Court should reach the

same conclusion, and hold that the ADA precludes the

unique “different manner” test adopted by the court of

appeals.

2 See, e.g., Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 15-

16 (Ist Cir. 1997); Colwell v. Suffolk County Police Dep’ t, 158

F.3d 635, 643-44 (2d Cir. 1998); Olson v. General Elec. Astro-

space, 101 F.3d 947, 952 (3d Cir. 1996); Halperin v. Abacus

Tech. Corp., 128 F.3d 191, 199 (4th Cir. 1997); Deas v. River

West, L.P., 152 F.3d 471, 479-80 (Sth Cir. 1998), pet. for cert.

filed, No. 98-916 (U.S. Dec. 2, 1998); McKay v. Toyota Motor

Mfg., U.S.A, Inc., 110 F.3d 369, 371-72 (6th Cir. 1997); Dun-

can v. State of Wisconsin Dep't of Health & Family Servs.,

F.3d___, 1999 WL 44845, at *5 (7th Cir. Feb. 3, 1999); Perkins

v. St. Louis County Water Co ., 160 F.3d 446, 448 (8th Cir.

1998); Pack v. Kmart Corp.,__ F.3d __, 1999 WL 51882, at

*4 (10th Cir. Feb. 4, 1999); Standard v. 4 A.B.EL. Servs., Inc.,

14. F.3d 1318, 1327 (11th Cir. 1998). But see Doane v. City of

Omaha, 115 F.3d 624, 627-28 (8th Cir. 1997), cert. denied, 118

S. Ct. 693 (1998). A number of courts have erroneously held

that the disability determination is to be made without regard to

any compensating or mitigating factors that may minimize the

impairment’s impact on the affected individual, but even these

courts do not follow the Ninth Circuit's “different manner” test.

See Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 865-66

(Ist Cir. 1998); Matczak v. Frankford Candy & Chocolate Co.,

136 F.3d 933, 937 (3d Cir. 1997); Baert v. Euclid Beverage,

Lid., 149 F.3d 626, 629 (7th Cir. 1998); Harris v. H & W Con-

tracting Co., 102 F.3d 516, 521-23 (11th Cir. 1996); see also

infra Part L.C.

8

B. The Court Of Appeals Erred In Failing To

Require Respondent To Make An Indi-

vidualized Showing That Monocularity Sub-

stantially Limits His Ability To See

Without making any ¢ffurt to analyze the actual effect

of monocular vision on respondent, the court of appeals

held that monocularity constitutes a disability per se.

Pet. App. 13a-15a. According to the court, “it is clear

that a person who is blind or practically blind in one eye

is disabled within the meaning of the Act” (id. at 13a),

regardless of that individual’s actual ability to perform

vision-related activities. The court of appeals erred in

addressing the = of monocularity in this per se

manner, and in failing to require respondent to meet his

burden of identifying individualized proof that his mo-

nocularity substantially limits his performance of the

major life activity of seeing.

Under the ADA, plaintiffs bear the burden of proving

that they are disabled. In order to meet that burden, re-

t was required to make an individualized show-

ing that his impairment rises to the level of a disability:

“<[D]isability’ means, with respect to an individual ... a

physical or mental impairment that substantially limits

... the major life activities of such individual.” 42

U.S.C. § 12102(2)(A) (emphasis added). The statutory

text precludes the per se approach followed by the court

of appeals in deciding this issue, because it requires a

3 See, e.g., Katz v. City Metal Co., 87 F.3d 26, 30 (ist Cir.

1996); Wernick v. Federal Res. Bank of N.Y., 91 F.3d 379, 383

(2d Cir. 1996); Rizzo v. Children's World Learning Crtrs., Inc.,

84 F.3d 758, 763 (Sth Cir. 1996); Ross v. Indiana State

Teacher's Ass'n Ins. Trust, 159 F.3d 1001, 1013 (7th Cir. 1998).

9

ap that monocularity substantially limits his major

ife activities. Other federal courts have followed this

course, looking to the plaintiff's performance of daily

activities to determine whether he or she is substantial

limited in the major life activity of seeing. See, e.g., Still

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

1997) (“although his peripheral vision is limited by his

partial blindness, [plaintiff] is able to perform normal

daily activities” requiring visual acuity, including driv-

ing cars and motorcycles; and thus he i not “diset led”

Jasany v. United States Postal Serv., 755 F.2d 1244

1250 (6th Cir. 1985) (plaintiff's “strabismus” (cross-

penal apn Mngt onto had any effect whatsoever on

y vities, including his work hi and

ability to carry out” most of his 74 me the cnn ot

thus, he was not “handicapped”).5 The court of appeals

erred in failing to follow that same approach here.

> See also, e.g, Hoppes v. Commonwealth of Pa.

1:CV-97-1959, 1998 WL 9654107, at *4 ap tg Sen

1998); Bancale v. Cox Lumber Co., No. 97-113-CIV-FTM-25D,

1998 WL 469863 at *4 (M.D. Fla. May 18, 1998): Cline v. Fort

Howard Corp., 963 F. Supp. 1075, 1080-81 (E.D. Okla. 1997):

Overturf v. Penn Ventilator Co., 929 F. Supp. 895, 898 (ED.

Pa. 1996); Sweet v. Electronic Data Sys., No. 95 Civ. 3987

[Footmote continued on next page]

10

C. The Court Of Appeals Failed To Give

Proper Weight To Respondent’s Ability To

Compensate For His Impairment

The court of appeals compounded its errors by failing

to give proper weight to respondent’s ability to compen-

sate for the effects of his impairment. Indeed, the court

appears to have predicated its “different manner” hold-

ing at least in part on its determination that respondent’s

“brain has developed subconscious mechanisms for

coping with [his] visual impairment and thus his body

compensates for his disability.” Pet. App. 14a. Accord-

ing to the court of appeals, the very existence of these

“subconscious mechanisms” supports a finding that he is

disabled, because they confirm that “the manner in

which he sees differs significantly from the manner in

which most people see.” Jd. (emphasis in original). Un-

der this view, the fact that an impaired individual is able

(through use of internal adjustments or other mitigating

measures) to perform at essentially the same ability level

as unimpaired persons leads to the counterintuitive con-

clusion that the individual is disabled.

The court of appeals’ counterintuitive treatment of

mitigating factors is inconsistent with the text and

structure of the ADA. Far from justifying a finding of

disability, an impaired individual’s ability to compensate

for or mitigate the effects of the impairment is instead an

important consideration that weighs heavily against a

finding of disability.

The definition of disability is phrased in the present

tense—i.e., an “impairment that substantially limits,” 42

[Footnote continued from previous page]

(MBM), 1996 WL 204471, at *5 (S.D.N.Y. Apr. 26, 1996);

Walker v. Aberdeen-Monroe County Hosp., 838 F. Supp. 285,

288 (N.D. Miss. 1993).

ll

U.S.C. § 12102(2)(A)—thereby demonstrating that the

statutorily mandated inquiry is not ah ical exami-

nation of whether the individual would be disabled in the

absence of mitigating measures. Instead, the statute ex-

pressly looks to the present, and inquires whether the

individual is in fact “substantially limit{ed]” in perform-

ing his or her major life activities. See United States v.

Wilson, 503 U.S. 329, 333 (1992) (“Congress’ use of a

verb tense is significant in construing statutes”). The in-

ny Se Se NSE SOT OF oe impairment necessar-

ily requires consideration of present reality, including

the real-world of any compensating or mitigating

measures. For reason, and for all reasons set

forth in the Brief of Amici Curiae American Truckin

Associations, Inc., et al., the court of appeals erred in

failing to treat respondent’s ability to ney ae + for his

not disabled.

impairment as further proof that he is

Il. <n nemo Monocular Vision Does Not

an tially Limit” His Major Life Activity

_ Respondent clearly failed to meet his burden of mak-

ing an individualized showing that monocularity

“substantially limits” his major life activity of seeing.

The record evidence indicates that respondent’s monocu-

larity does not substantially restrict his ability to engage

in sight-related activities. That evidence is consistent

with the available scientific and medical evidence, and

with the fact that most individuals with monocular vision

report that they are not substantially limited in their ma-

jor life activities as a result of their vision impairment.

Under a proper understanding of the definition of

“disability,” therefore, respondent is not disabled.

12

A. According To His Own Statements And

Other Evidence, Respondent Is Not Dis-

abled

Respondent’s own statements demonstrate that de-

spite his monocularity, respondent is not substantially

limited in the major life activity of seeing. When asked

on his job application whether he had any physical limi-

tations, for example, respondent answered, “None.” Ct.

App. Supplemental Excerpt of Record at 29. Similarly,

respondent testified that his monocularity has never in-

terfered with his ability to perform any jobs:

Q: Other than your experience at Albertson’s, has

your eye situation ever interfered with your

doing anything else in terms of work that you

wanted to do?

A: Not that I recall.

Joint Appendix (“J.A.”) 275. Indeed, t has

held jobs that involved driving, and has performed them

without incident. Pet. App. 9a; see J.A. 295-96.

Thus, the evidence indicates that respondent has

learned to function normally despite having the complete

use of only one eye. As the court of appeals observed,

“his brain has developed subconscious mechanisms for

coping with [his] visual impairment and thus his body

compensates for his” condition. Pet. App. 14a. In fact,

respondent’s adaptation is so complete that “it was hard

for [him] to believe what they were talking about” when

his physician explained that there was “[s]omething[]

wrong with [his] vision.” J.A. 285. Thus, it is not sur-

prising that respondent’s monocular vision has not inter-

fered with his ability to complete a college degree and

work in a wide range of jobs, including serving as a

county power equipment supervisor, building and op-

erating a laundromat, driving tricks, operating a service

station, running a garbage hauling business, and repair-

ing jet aircraft, trucks, and automobiles. See J.A. 137-

38, 272-73, 282, 286-88; see also Ct. App. Excerpt of

13

Record 59, 63-67.

To classify as “disabled” someone as able as respon-

dent merely because he makes do with one eye is to ig-

nore the plain language of the ADA, which requires that

an individual must be substantially limited in a major

life activity before being classified as disabled. It is also

to adopt one of the very en ed assumptions not

truly indicative of the indivi ability of such indi-

viduals” that the ADA was designed to stamp out (42

U.S.C. § 12101(a)(7)), and to convert the ADA into one

of the very “overprotective rules and policies” that the

statute forbids. 42 U.S.C. §§ 12101(a)(5), 12112(a),

(b)(1). The court of appeals erred in employing a gen-

eralized and stereotypical view of the impact of monocu-

larity rather than engaging in an individualized assess-

ment of the sufficiency of respondent’s evidence to

prove that he is disabled—an assessment that would in-

rey ned led to a determination that he did not meet

B. Monocularity Is Not A Disabling Condition

The medical and scientific literature regarding mo-

nocular vision confirms that, contrary to the sas af ap

peals _ Stereotypical —~ *- monocularity is not a

disabling impairment. viduals with monocular vi-

sion “lead quite normal, healthy and productive lives.”

Cecilia Y. Perez, The Visual Ramifications Of Losing An

Eye (Part II), 9 J. ViSION REHAB. 12, 17 (1995). In fact,

the vast majority of individuals with sight in one eye

peg marae themselves as disabled nor are disabled,

and, gh “the ophthalmic literature rarely addresses

the impact of monocular vision on individuals’ life ac-

tivities” (John V. Linberg et al., Recovery After Loss of

an Eye, 4 OPHTHALMIC PLASTIC & RECONSTRUCTIVE

SURGERY 135, 136 (1998)), the available reports—both

scientific and anecdotal—consistently indicate that mo-

nocular individuals can engage freely and without sig-

nificant limitation in all of the major life activities that

14

binocular individuals enjoy, including activities involv-

ing eyesight.

In a recent survey conducted under the auspices of the

West Virginia University Department of Ophthalmol-

ogy, for example, “the great majority of monocular

adults had no subjective ion of disability in eve-

ryday tasks, and aed oe time required for ad-

justment [to monocular vision] was short.” Linberg et

al., supra, at 137. After one month, half of the indi-

viduals participating in the study had adjusted to their

impairment and returned to their normal activities, in-

cluding “driving,” “work,” “recreation,” “home activi-

ties,” and “walking.” Jd. at 135-37. After one year, 93

percent “had adjusted to the loss of their eye . . . with re-

spect to” those activities. Jd. For 80 percent of the mo-

nocular individuals studied, their loss of an eye had “no

effect” on their normal activities after the adjustment

period had ended, and for approximately two-thirds of

those studied their impairment had not “changed [their]

life in any permanent way.” Jd. at 136, 137. The study

concluded by rejecting the suggestion that “loss of an

eye creates a significant handicap.” Jd. at 137.°

6 The deposition testimony of plaintiffs with monocular vision

in EEOC v. United Parcel Service, Inc., No. C 97-961-FMS

(N.D. Cal.), consistently supports these findings. For example,

when asked whether there is “any activity that you feel you

won’t do or can’t do because of your impaired vision,” plaintiff

James Akins answered, “No.” Akins Depo. at 11. When asked,

“How, if at all, your vision impairment affect[s] your day-to-day

life,” plaintiff Shawn Hogya replied, “Day to day it doesn’t af-

fect me .... I have learned to adapt to it over the years.”

Hogya Depo. at 9. When asked whether “your vision impair-

ment substantially limits your ability to see,” plaintiff Stephen

Ligas answered, “No,” and when asked whether “there [is] any

activity that you don’t do or won't do because of your vision,”

[Footnote continued on next page]

15

In the world of sports, in all age groups and even at

the highest levels of competition, monocular vision is

not rare. In the National Football League, for example

recent top draft icks such as Cedric Jones from the

University of Oklahoma and Jermane Mayberry of

Texas A&M were college performers despite their

monocular vision, retired monocular players include

Kansas City Chiefs tight end Fred Arbanas and Pro

Bowl receiver Wesley Walker of the New York Jets.

See Jerry Wizig, Day Turns Out As Well As Jones Could

Envision, HOUSTON CHRON., Apr. 21, 1996, at 14; see

also Dick Weiss, Gator More Than Meets The Eye, N.Y.

DAILY NEWS, Dec. 24, 1998, at 74 (Univ. of Florida

basketball star Eddie Shannon); Jerry Sullivan, Lady

Bengal 's Vision To Excel, Help Others Puts Her Life In

Focus, BUFFALO NEWS, Dec. 10, 1998, at El (high

school basketball star Renee Witt). The experiences of

these individuals are supported by scientific study of the

visual coordination required for athletics. A 1993 study

at York University in Ontario, Canada, demonstrated

that individuals with monocular vision “are able .. . to

discriminate differences in the direction of motion in

depth, "and that as a result, monocular individuals, iike

other “sports players of even moderate accomplish-

ment[,] can judge precisely the direction of motion in

depth . . . when catching or hitting a ball.” D. Regan and

oe y ia — ony meg Loerie in the Di-

rection of Motion in th, 34 VISION ;

175-76 (1994). ¢ oe Ate

In some contexts, in fact, individuals “are more accu-

rate with monocular than with binocular vision.” Wil-

[Footnote continued from previous page]

he again answered, “No,” and finally, when asked whether “you

feel you can do everything as well as people with two unim-

paired eyes,” he replied, “Yes.” Ligas Depo. at 8.

16

liam Prinzmetal and Laurie Gettleman, Vertical-

horizontal illusion: One eye is better than two, 53

PERCEPTION & PSYCHOPHYSICS 81, 81 (1993). For ex-

ample, individuals with binocular vision often mistak-

enly judge a vertical line to be longer than a horizontal

line of the same length. In a study sponsored by the Na-

tional Institute of Mental Health, researchers determined

that individuals with one eye tend to make more accurate

visual judgments on such tests. /d. at 87. Scientific con-

sensus holds that this is at least in a product of the

differences between the elliptical field of view created

by the overlapping fields of view in binocular vision and

the more nearly circular field of view in monocular vi-

sion. Id.

In short, monocularity does not result in a substantial

limitation on the major life activity of seeing. Contrary

to the reasoning of the court of appeals, therefore, mo-

nocularity does not rise to the level of a disability.

C. Scientific Studies Show That Monocular

Vision Raises Serious Safety Concerns In

The Context Of Commercial Driving

The fact that monocular individuals are not substan-

tially limited in the major life activity of seeing does not

mean, however, that such individuals are fully qualified

to perform all sight-related tasks at the same level as

binocular individuals. While monocular individuals are

fully capable of leading normal lives and may be able to

perform the full range of passenger-car ytten Fox ana

tasks, the consensus in the scientific and professional

community—a consensus accepted and implemented by

the U.S. Department of Transportation (“DOT”) (see 49

C.F.R. § 391.41}—is that serious safety concerns are

17

presented by the of monocular indivi

serving as drivers frees ee commercial vahicles.? syepeean

For example, the leading study prepared for the

on this subject concludes that “the wording of a ad ri

that de facto excludes monocular drivers . . . is supported

by the ratings.” Lawrence E. Decina et al., Visual Dis-

orders and Commercial Drivers 1, 30 (National Tech

Info. Serv. (“NTIS”) Nov. 1991). The same report rec-

qmmends that the DOT retain its ban on monocular

vers ad vy “¢” 7 large trucks traveling in interstate

comm a , a recommendati

has followed. See 49 C.F.R. § 391.41. sncsge ohn

Similarly, the largest regional stud

safety concludes that Gea drivers wih vine ae oo

ments, including monocular vision, are substantially

more likely to be involved in accidents and be convicted

of traffic violations than unimpaired drivers. See Patrice

N. Rogers et al., supra note 7, at iii (visually impaired

drivers in state-licensed commercial vehicles had a 65

percent higher accident rate than non-impaired drivers

and a 58 percent higher rate of convictions for traffic

violations). Numerous other studies are to the same ef-

fect. See, e.g., Patrice N. Rogers and Mary K. Janke

Performance Of Visually Impaired Heavy Vehicle Op-

? Of course, the safety concerns raised b ity i

rse, th YY monocularity in

commercial drivers varies depending on the extent of ro fing

pairment. See, e.g., Patrice N. Rogers et al., ACCIDENT AND

CONVICTION RATES OF VISUALLY-IMPAIRED HEAVY-VEHICLE

OPERATORS i-iv (Cal. DMV, Rept. No. RSS-87-111, Jan

1987). There is no scientific agreement on the extent of vision

impairment in the worse eye that is required to render an indi-

vidual “monocular.” Thus, depending on the definition em-

ployed, there may be some “monocular” individuals who can

drive commercial vehicles within acceptable safety limits.

18

erators, 23 J. SAFETY RESEARCH 159, 159-70 (1992);

Robert L. Henderson and Albert Burg, Vision And Audi-

tion In Driving (NTIS Nov. 1974); Robert L. Henderson

and Albert Burg, The Role Of Vision And Audition In

Truck And Bus Driving (NTIS Dec. 1973).

A number of factors combine to create these serious

safety concerns regarding monocular individuals of

commercial vehicles. First, most commercial vehicles

are configured differently than passenger cars. They

typically are larger and heavier, making them more dif-

ficult to control and stop and reducing the time available

to react to perceived dangers. Commercial vehicles also

typically have restricted lines of sight and generally have

no rear-view mirrors, instead relying on side mirrors

which require the driver to turn his or her head to obtain

complete driving information. The combination of these

factors can render the monocular commercial driver

“essentially without forward visual acuity because there

is no nasal retina of the [other] eye to register images

which are forward while the head and [other] eye are

turned.” Arthur H. Keeney, The Monocular Quandary

1, 7 (1994), cited at 59 Fed. Reg. 59,386, 59,388 (1994).

In addition, commercial drivers (unlike passenger car

drivers), often have no discretion regarding whether they

must drive in darkness or bad weather conditions—and

those conditions pose particular problems for monocular

drivers. John R. Griffin et al., BINOCULAR ANOMALIES:

DIAGNOSIS AND VISION THERAPY 4 (3d ed. 1995). Fur-

thermore, depth perception—and its essential correlate,

the ability to estimate when a vehicle will collide with an

approaching object—are less accurate among monocular

drivers, especially at close range. R. Gray and D.

Regan, Accuracy of Estimating Time to Collision using

Binocular and Monocular Information, 38 VISION RES.

499, 507-09 (1998); accord Viola Cavallo and Michel

Laurent, Visual information and skill level in time-to-

collision estimation, 17 PERCEPTION 623, 629 (1988).

19

While these differences between monocular and bin-

ocular drivers may be insignificant in the context of pri-

vate passenger vehicles, for the monocular commercial

driver they “are compounded by heavy truck weights,

less maneuverability, prolonged stopping distance and

the need to monitor road conditions and other vehicles

more minutely.” Keeney, supra at 5-6. Moreover, the

stakes are higher with larger vehicles. “Though crashes

are statistically rare events in the multi-million popula-

tion of commercial drivers, these rare events are often

py at Mo even more unfortunately—tresult in death

or injury to one or more ts ina vehi-

cles involved in such a crash.” Id at 19: Decina, soon

at 1. As a result, while for most purposes “[{t]he mo-

nocular driver may be licensed with only small addi-

tional risk for driving,” as a general rule such drivers

“should not be licensed for commercial vehicle opera-

tion.” Keeney, supra at 20.

The DOT has been authorized by Congress to stud

the question whether to retain or modify the naan

ban on monocular drivers of commercial motor vehicles

west: So interstate commerce (see 49 U.S.C. § 31136),

but it declined to eliminate its general prohibition

against monocular drivers of commercial vehicles requir-

ing DOT certification.’ On one occasion, the agency has

8 Recognizing the capabilities of monocular individuals in gen-

eral, the DOT conducted an experimental waiver program in an

effort to determine whether the agency should modify or aban-

don its ban on monocular drivers. See 61 Fed. Reg. 13,338

(1996); Advocates for Highway & Auto Safety v. FHWA, 28

F.3d 1288 (D.C. Cir. 1994). Ultimately, however, the DOT de-

cided to retain its general ban on monocular drivers, concluding

that “there were weaknesses in the waiver study design” and

that the waiver program “has not produced ... sufficient evi-

[Footnote continued on next page]

20

exercised its authority under 49 C.F.R. § 391.41 to make

an individualized determination that a monocular driver

was qualified to drive commercial vehicles despite his

impairment. Rauenhorst v. United States Dep't of

Transp., 95 F.3d 715 (8th Cir. 1996). But for the rea-

sons set forth above, the available scientific evidence

does not justify treating all monocular individuals as

qualified to drive commercial vehicles, even though such

individuals are able to drive private — vehicles

and perform virtually all other significant sight-related

tasks without substantial limitation.

Ill. The Court Of Appeals Erred In Holding That

A Genuine Issue Of Material Fact Exists As

To Whether Respondent Was “Regarded As

Disabled

As an “alternative” ground for its determination that

respondent is disabled under the ADA, the court of ap-

peals held that respondent could be found to be disabled

under the “regarded as” prong of the ADA s disability

definition. Pet. App. 16a-17a. This “alternative

ground, however, provides no support for the judgment

below. In the first place, for the reasons set forth in Part

III.A. below, the court of appeals’ holding in this regard

is dependent on the court’s initial conclusion that mo-

nocular vision constitutes a disability per se. Since the

latter determination is erroneous, the former cannot sur-

vive either.

Second, even if the “regarded as” holding could prop-

ly be viewed as an independent ground for the judg-

se below, the court’s analysis could not withstand

[Footnote continued from previous page) |

dence upon which to develop new vision ... standards.” 61

Fed. Reg. at 13,340.

21

scrutiny. The evidence indicates only that Albertsons

correctly viewed respondent as a monocular individual

wipoee impairment rendered him unable to satisfy the

job-re | ene for employment as a commer-

cial truck driver—not that Albertsons regarded him as

substantially limited in the major life activities of seeing

or working. Thus, there is no basis for a finding of dis-

ability under the “regarded as” prong of the statutory

definition of disability.

A. The Court Of Appeals’ Analysis Of The

. rded As” Issue Is Fatally Dependent

On Incorrect Premise That Monocular-

ity Is A Disability Per Se

The “ as” prong of the definition of disability

provides an individual is disabled if he or she is

“regarded as” having an impairment that substantially

limits one or more major life activities, even though the

individual does not in fact suffer from such an impair-

ment. 42 U.S.C. § 12102(2)(C). In this case, respondent

claims that one of Albertsons’ ers described him

as “blind in one eye or legally blind.” Pet. App. 17a.

The court of held that this statement, standing

alone, was sufficient to create a “genuine issue of fact

—s whether Albertson’s ived [ dent] as

disabled” within the meaning of the ADA. /d. at 16a.

The court of s’ conclusion in that regard was

erroneous. Under the statutory definition, an employer’s

mere recognition that an employee is impaired—such as

by being “blind in one eye or legally blind”—is insuffi-

cient in itself to support a finding that the employee is

regarded as disabled, unless the perceived impairment (if

actually present) would wn constitute a disability.

This conclusion follows directly from the plain language

of the statute: Under prong one of the definition, an in-

dividual who actually has an impairment that “sub-

stantially limits” a major life activity is disabled in fact.

42 U.S.C. § 12102(2)(A). Under prong three of the

22

definition (the “regarded as” prong), an individual who

is “regarded as having such an impairment” is disabled.

42 U.S.C. § 12102(2)(C). The reference to “such an im-

pairment” in prong three is, of course, a reference to the

type of impairment previously described in prong one,

i.€., an impairment that would, if actually present, render

the individual disabled in fact. Accordingly, an em-

ployee is not “regarded as” disabled within the meaning

of the ADA unless the individual is perceived as having

an impairment that “substantially limits” a “major life

activity.”?

As explained in Parts I and II above, the court of ap-

peals erred in concluding that respondent’s monocularity

“substantially limits” respondent’s “major life activity”

of seeing. As a result, the court’s “regarded as” analysis

cannot withstand scrutiny, because it necessarily pro-

ceeds from the incorrect premise that monocularity is a

9 In keeping with the statutory text, every court of appeals to

consider this issue has held that a perceived impairment must be

substantially limiting, or perceived as substantially limiting, in

order for the plaintiff to be “regarded as” disabled. See Skorup

v. Modern Door Corp., 153 F.3d 512, 515 (7th Cir. 1998);

Reeves v. Johnson Controls World Servs., Inc..140 F.3d 144,

153 (2d Cir. 1998); Sutton v. United Air Lines, Inc., 130 F.3d

893, 904-03 (10th Cir. 1997), cert. granted, No. 97-1943 (U.S.

Jan. 8, 1999); Thompson v. Holy Family Hosp., 121 F.3d 537,

541 (9th Cir. 1997); Foreman v. Babcock & Wilcox Co., 117

F.3d 800, 806-07 & n.10 (Sth Cir. 1997), cert. denied, 118 S. Ct.

1050 (1998); Gordon v. EL. Hamm & Assocs., Inc., 100 F.3d

907, 912 (11th Cir. 1996), cert. denied, 118 S. Ct. 630 (1997);

Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir. 1996); Aucutt v.

Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir.

1996); Cook v. State of Rhode Island, 10 F.3d 17, 25 (ist Cir.

1993) (Rehabilitation Act case); Forrisi v. Bowen, 794 F.2d 931,

934-35 (4th Cir. 1986) (same).

general matter), the , ”

—— court of appeals as

B. Respondent Was Not As” Sub-

stantially Limited In A Major Life Activity

Even if the court of appeals’ “regarded holding

au seeps dennis aateoenieddeacmeae

that monocularity is per se disabling, reversal would still

1. Respondent Was Not Regarded As Sub-

sail a coed

The record in this case fails to demonstrate that Al-

bertsons perceived respondent's impairment as “sub-

stantially limit[ing]” his major life activity of seeing. To

the contrary, as explained in Part II above, respondent's

monocularity is in fact not disabling, and there is nothing

Je ara nme wnt ge trae Doepeng

impairment it actually is. Instead, the re-

cord reveals that Albertsons perceived respondent

merely as someone who, by virtue of his monocularity,

did not satisfy the job-related qualification standards re-

10 Respondent claims to be “regarded as” substantially limited in

the major life activities of seeing and working. Pet. C.A. Br. 11-

13; Resp. C.A. Reply Br. 7-9.

24

quired to be a truck driver for Albertsons. Albertsons

has a consistent policy of employing only truck arivers

who meet or exceed minimum DOT standards (J.A. 53),

and terminated respondent because “he was not qualified

under the DOT minimum requirements.” Jd. at 314,

339. Albertsons’ accurate belief that respondent did not

ee Ee Te conan ahi aie

into a finding that Albertsons regarded

mcpentund ts aduanatatay Geinsatatiodanetten:

That conclusion is bolstered by Congress’s under-

standing of the function served by the “regarded as”

provision, which was drawn directly from the Rehabili-

tation Act. As thie Cont shenaniant in Gihetl Roaed of

Nassau County v. Arline, 480 U.S. 273 (1987), Congress

extended protection to persons who are merely

“regardec as” disabled because it was concerned that

“society’s accumulated myths and fears about disability”

are as handicapping as the physical limitations them-

selves. Jd. at 284 (discussing the Rehabilitation Act’s

precursor to the ADA’s “regarded as” prong). Plainly,

Albertsons’ rationale for discharging respondent cannot

be equated with the societal “myths and fears” that are

the target of this prong of the disability definition. Al-

bertsons did not terminate respondent’s employment

based on any myths or fears about disability, but instead

because he failed to meet a specific job Lae i ag

qualification based on regulations promulgated by the

DOT. Accordingly, there is no basis for a finding that

Albertsons “regarded” respondent as substantially lim-

ited in the major life activity of seeing.

2. Respondent Was Not Regarded As Sub-

stantially Limited In The Major Life Ac-

tivity Of Working

The fact that respondent was terminated because of

his inability to satisfy a prerequisite for a particular job

also precludes a finding that Albertsons him as

“substantially limited” in the major life activity of

25

working. Because of his impairment, respondent was

foreclosed from driving a truck for Albertsons. That

“limitation” on his ability to work is insignificant, not

“substantial.”

As this Court held in Bragdon, administrative and

judicial hog emg of the ope oa Act provide

persuasive in interpreting provisions

of the ADA, including the definition of disability. See

Bragdon, 118 S. Ct. at 2208 (“When administrative and

judicial interpretations have settled the meaning of an

existing statutory provision, repetition of the same lan-

guage in a new statute indicates . . . the intent to in

rate [those] ee ee as well. ". Thus, Rehabilita-

tion Act t sub-

stantially limits the major life activity vty of working are

highly relevant here, rhb cy reer ee ago was

not, and was not “regarded as,” disabled in this regard.

For example, in Forrisi v. Bowen, 794 F.2d 931 (4th

Cir. 1986), a utility systems repairer ‘suffered from acro-

phobia and was terminated because he could not climb

erate | Poe H may __ at 933. The Fourth Circuit

rejected his c was “regarded as” handicapped

under the Rehabilitation Act, explaining that an em-

ployer does not “regard an employee as handi

simply by finding the employee to be incapable of satis-

fying the singular demands of a particular job.” Jd. at

934. Instead, the test is whether the employer finds “the

employee’s impairment to foreclose generally the type

of employment involved.” Jd. at 935. Since the plaintiff

had no trouble obtaining jobs in his field, the court held

that, “[flar from being regarded as having a ‘substantial

limitation’ in employability, Forrisi was seen as unsuited

for one position in one plant—and nothing more.” /d.

Similarly, in Tudyman v. United Airlines, 608 F.

Supp. 739 (C.D. Cal. 1984), United terminated a fli

attendant because his weight exceeded the amount that

United had established as the maximum for male flight

attendants of his height. /d. at 740. The flight attendant

26

sued United and argued that he was, or was regarded as,

substantially limited in the major life activity of work-

ing. The court rejected the plaintiff's argument, reason-

ing that the inability to perform a single job is not a

“substantial limit[ation]” of the ability to work. /d. at

745. Further, the court concluded, United did not per-

ceive the plaintiff as limited in his activities;

“(defendant merely regards plaintiff as not being under

a certain weight.” Jd. at 746. The court “refuse[d] to

make the term handicapped a meaningless phrase.” Jd.!!

The common thread running through these cases is

that an employee is not “substantially limited” in the

major life activity of werking if he or she is disqualified

from a specific job because of a particular job require-

ment, even if other employers might impose the same

requirement for the same or similar job. It was open to

Congress in enacting the ADA to repudiate these courts’

interpretations of the Rehabilitation Act, but it did not.

Accordingly, this Court should presume that Congress

ratified these courts’ interpretation when it reenacted the

11 Other Rehabilitation Act cases are to the same affect. See,

e.g., Jasany v. United States Postal Serv., 755 F.2d 1244, 1250

(6th Cir. 1985) (mail clerk who suffered from “strabismus” (a

cross-eyed condition) was not substantially limited in the major

life activity of working even though his impairment rendered

him unable to operate a mail-sorting machine and thus led to his

termination, because his impairment did not affect “his past

work history and ability to carry out other duties at the post of-

fice”); Torres v. United States Postal Serv., 610 F. Supp. 593,

594-97 <N.D. Tex. 1985) (mail carrier who was terminated in

part because his left-handedness hampered his ability to perform

mail “casing” was not handicapped because an impairment

which interferes with an individual’s ability to do a particular

job, but does not significantly decrease his ability to obtain other

satisfactory employment, is not substantially limiting).

27

same statutory language in the ADA. See Bragdon, 118

S. Ct. at 2208.

Indeed, even the EEOC’s interpretive gui cites

Forrisi and Jasany with approval in di ing the

meaning of “substantial” limitations on the major life

activity of working. 29 C.F.R. Pt. 1630, App., Section

1630.2(j).!2 Thus, it is indisputable that an individual

who is, or is perceived as being, luded from per-

Forrisi aie oni: aie cama Seinen

orrisi *s impai t

must “foreclose generally the type of employment in-

volved” before it can be found to impose a “substantial

limit[ation]” on the major life activity of working.

The EEOC’s regulations are consistent with this un-

derstanding of the statute. They provide:

The term substantially limits means significantly

restricted in the ability to perform either a class of

jobs or a broad range of jobs in various classes as

12 We note that petitioner errs in suggesting that the EEOC’s in-

terpretive guidance is entitled to “great deference.” Pet. Br. 18

n.6. The EEOC’s guidance is merely an interpretive rule issued

without notice and comment; as such, it “dofes] not have the

force and effect of law and [is] not accorded that weight in the

adjudicatory process.” Shalala v. Guernsey Mem. Hosp., 115 S.

Ct. 1232, 1239 (1995). Since its decision in General Electric

Co. v. Gilbert, 429 U.S. 124, 140-46 (1976), this Court has

consistently held that “the level of deference afforded [to the

EEOC’s guidance] will depend upon the thoroughness evident

in its consideration, the validity of its reasoning, its consistency

with earlier and later pronouncements, and all those factors

which give it power to persuade, if lacking power to control.”

EEOC v. Arabian American Oil Co., 499 U.S. 244, 257 (1991).

And this Court has never deferred to EEOC guidance that “lacks

support in the plain language of [a] statute.” Jd. at 257-58.

28

compared to the average person having comparable

training, skills and abilities. The inability to per-

form a single, particular job does not constitute a

substantial limitation in the major life activity of

working.

29 C.F.R. § 1630. 26)(3)(i) (emphasis added). A “class

of jobs” includes “jobs utilizing similar training, knowl-

pr skills or abilities” within the geographical area to

which the individual has reasonable access. A “broad

range of jobs in various classes” encompasses “other

jobs not utilizing similar training, knowledge, skills or

abilities” as the job from which the individual has been

disqualified. Jd. § 1630.2(j)(3)(ii)(B) and (C).

Under these regulations, and in keeping with Forrisi

and the other pre-ADA cases discussed above, an im-

pairment is not substantially limiting if the jobs from

which it disqualifies the individual amount to something

less than an entire “class of jobs” or “broad range of jobs

in various classes.” Federal courts considering whether

an individual is substantially limited in the major life

activity of working have consistently adhered to this un-

derstanding of the ADA. For instance, in Witter v. Delta

Air Lines, Inc., 138 F.3d 1366 (11th Cir. 1998), a pilot

whose impairment resulted in his termination brought a

claim under the ADA, arguing that his employer (Delta)

regarded him as significantly restricted in the ability to

perform a class of jobs. /d. at 1370. The Eleventh Cir-

cuit disagreed, holding that “piloting airplanes is too nar-

row a range of jobs to constitute a ‘class of jobs.’” Jd.

“There are non-piloting jobs in the Atlanta area which

utilize ‘similar training, knowledge, skills or abilities’ as

piloting jobs,” including “pilot ground trainer, flight

simulator trainer, flight instructor,” and many others. /d.

Thus, “to establish that Delta perceived him as unable to

perform the relevant ‘class of jobs,’ Witter would have

to prove Delta regarded him as unable to perform not

just the job of being a pilot, but also the non-piloting

jobs we have discussed.” Jd. Because he failed to do so,

29

7 conte not show that he was “regarded as” disabled.

I

Like Witter, respondent cannot show that he was re-

garded as unable to perform any other jobs in his geo-

graphic area that utilize “similar training, knowledge,

skills or abilities.” Respondent could no doubt have ob-

tained any number of transportation-related jobs in his

region, and there is no indication that Albertsons per-

ceived him as unable to do so. Nor is there any evidence

that respondent was “regarded as” unable to perform

other driving-related jobs not requiring compliance with

DOT standards.

Accordingly, this case is just like the Rehabilitation

Act cases that Congress implicitly approved when it en-

13 Accord, e.g., Patterson v. Chicago Ass'n for Retarded Citi-

zens, 150 F.3d 719, 725 (7th Cir. 1998) (“Patterson’s impair-

ment must render her incapable of performing any teaching job,

not just a specific sort of teaching job. Her impairment ‘must

substantially limit employment generally.’”); Thompson, 121

F.3d at 540 (nurse with lifting restriction who, as a result, could

not perform “total patient care” was capable of performing other

types of jobs within the health care industry and, thus, was not

substantially limited in the activity of working); McKay, 110

F.3d at 373 (plaintiff's impairment, which prevented her from

performing “repetitive-motion factory work,” did not “signifi-

cantly restrict her ability to perform either a class of jobs or a

broad range of jobs in various classes”); Bridges v. City of

Bossier, 92 F.3d 329, 334 (Sth Cir. 1996) (“[A] limitation that

prevents one from becoming a firefighter—or even a firefighter

and associated municipal paramedic or EMT backup firefight-

er—... only affects a ‘narrow range of jobs.’”), cert. denied,

519 U.S. 1093 (1997); Daley v. Koch, 892 F.2d 212, 215-16 (2d

Cir. 1989) (individual with an impairment that rendered him un-

suitable for police work was not substantially limited from

working under the Rehabilitation Act).

life activity and who ““are in fact capable

substantially similar jobs.”’ Sutton, 130 F.3d at 906.

CONCLUSION

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