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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 555

## Text

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
eeeeeee
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:
“ 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.
%
#
+ %
Fy

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0238%3A15. Public record. Not legal advice.