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

MAR 24 1999

No. 98-591

Supreme Court of the United States

October Term, 1998

>

ALBERTSONS, INC.,

Petitioner,

HALLIE KIRKINGBURG,

Respondent

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

. —EE

BRIEF AMICUS CURIAE OF

JAMES STRICKLAND, SR., ET AL.,

IN SUPPORT OF RESPONDENT

——_____-_ -——- ¢ —____—__—__-

Douc as L. PARKER

Counsel of Record

Sunit H. MANSUKHANI

Institute for Public Representation

Georgetown University Law Center

600 New Jersey Avenue, N.W.

Ste. 312

Washington, DC 20001

(202) 662-9535

Counsel for Amici Curiae

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

BEST AVAILABLE COPY

QUESTION PRESENTED

The amici curiae will address the following question:

Whether a private employer violates the Americans

with Disabilities Act by refusing to hire a truck driver

who has a valid Commercial Driver’s License solely

because that driver has not met a vision standard that the

Federal Highway Administration has determined fails to

measure a monocular driver’s ability to operate a truck

safely.

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ......:-csvcvcseustaneaene i

TABLE OF AUTHORITIES... ..o0.ccccevtevenenanen iii

INTEREST OF THE AMICI CURIAE..............++: 1

SUMMARY OF ARGUMENT.............-00eeee08 4

ARGUMENT ....0.00+000003 600600 mn8 suena eee 5

I. THE FEDERAL HIGHWAY ADMINISTRA-

TION’S VISION STANDARD DOES NOT MEA-

SURE A MONOCULAR DRIVER'S ABILITY TO

OPERATE A TRUCK SAFELY ......secscoeccee 5

A. History And Effect Of The Vision Standard.. 5

B. Monocular Drivers Can Be Otherwise Quali-

fied To Drive Safely In Interstate Commerce

Without Meeting The Vision Standard ..... 8

II. ALBERTSONS’ REFUSAL TO ACCEPT FHWA

VISION WAIVERS DISCRIMINATES AGAINST

MONOCULAR DRIVERS IN VIOLATION OF

THE AMERICANS WITH DISABILITIES ACT.. 17

A. The Vision Standard Is An Illegal Criterion

Upon Which To Deny A Monocular Driver

Employment Since It Does Not Measure A

Driver’s Ability To Operate A Truck Safely .. 18

B. A Private Employer Like Albertsons Cannot

Ignore The FHWA’s Waiver Of The Vision

Standard For A Particular Driver .......... 20

CONCLUSION .. ccccsccndesscescecusenwes Seenenene 27

ess

TABLE OF AUTHORITIES

Page

Cases

Advocates for qT and Auto Safety v. Fed. High-

way Admin., 28 F.3d 1288 (D.C. Cir. 1994)......... 25

Bragdon v. Abbott, 118 S.Ct. 2196 (1998).............. 18

Buck v. U.S. Dept. of Trans., 56 F.3d 1406 (D.C. Cir.

EUR PERUERWEN Ss GUS co bebe cooncccewsccccces 23, 24

Cousins v. Secretary of U.S. Dept. of Trans., 880 F.2d

ER iin ak buon ceeeccouasscceees: 24

Doe v. Univ. of Maryland Medical System Corp., 50

i Ds pose ens secesbwcnctececccss 9

Pandazides v. Virginia Bd. of Educ., 946 F.2d 345 (4th

PEST ES Eccl Gboebescescctecccosccess 10, 11, 19

Rauenhorst v. U.S. Dept. of Trans., Fed. Highway

Admin., 95 F.3d 715 (8th Cir. 1996)......... 12, 13, 21

School Bd. of Nassau County v. Arline, 480 U.S. 273

ER CAA tuebue dude ab abecdesscaeccccss 11, 23

Southeastern Community College v. Davis, 442 U.S.

EMRE Us ceUUb hae sedndnervesseccesess 11

STATUTES

Motor Carrier Safety Act, Pub. L. No. 98-554, 98

SEE RRR cs cid>coepssvrcocccses & 7

Transportation Equity Act for the 21st Century,

Pub. L. No. 105-178, 112 Stat. 107 (1998)..... 2, 8, 26

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a a Bs errr passim

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TABLE OF AUTHORITIES — Continued

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REGULATIONS

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49 C.FR. § 391.41(b)(10) ....... 2... ...005. 1, 4, 6, 9, 13

v

TABLE OF AUTHORITIES - Continued

Page

FepeRAL RecisTer

37 Fed. Reg. 6793 (Ped. 2B, 1992) ........ecccceses 6, 13

57 Fed. Reg. 10295 (Mar. 25, 1992)..... 7, 10, 14, 22, 23

ST Fee. Mam. Zaeve Gem. 5, BOGE)... sccccsccccccces 22

57 Fed. Reg. 31458 (Jul. 16, 1992).... 12, 14, 15, 21, 22, 25

59 Fed. Reg. 50887 (Oct. 6, 1994)... 7, 15, 16, 22, 25, 26

59 Fed. Reg. 59386 (Nov. 17, 1994)........... 15, 16, 26

63 Fed. Reg. 1524 (Jan. 9, 1998)...........0.ccceeeeee 3

63 Fed. Reg. 66226 (Dec. 1, 1998) ..............05. 3, 26

63 Fed. Reg. 67600 (Dec. 8, 1998) ...........-.0..000. 8

Lecistative History

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

(Senate Committee on Labor and Human

H. . No. 101-485, Part 2, 101st Cong., 2d Sess.

(1990) (House Committee on Education and

a DN oe ie i TE ei led ane os we 6's 12

H. a No. 101-485, Part 3, 101st Cong., 2d Sess.

(1990) (House Committee on the Judiciary)........ 12

MISCELLANEOUS

Bartow Associates, Inc., The Monocular Driver: A

Review of Distant Visual Acuity Risk Analysis

Date, Bae THER oo ccnccavycccsvevescevscben 12, 13, 15

BRIEF AMICUS CURIAE OF JAMES STRICKLAND,

SR., ET AL., IN SUPPORT OF RESPONDENT

+

INTEREST OF THE AMICI CURIAE!

Amici James Strickland, Sr., Dorian Holladay, George

Hahn, Glenn Gee, Richard Carlson, and David Rau-

enhorst are all truck drivers with monocular vision who

have driven hundreds of thousands of accident-free miles

in their careers. However, because of their monocular

vision, these drivers are unable to meet the Federal High-

way Administration’s (“FHWA”) vision standard, 49

C.F.R. § 391.41(b)(10) (“vision standard”).2 Meeting the

vision standard has been a prerequisite for obtaining a

Commercial Driver’s License (“CDL”) that permits one to

drive a truck interstate. However, in 1992 the FHWA

introduced a vision waiver program that permitted

monocular drivers to obtain a CDL provided they met a

variety of other requirements, including having a safe

driving record. Amici have either obtained or are in the

process of applying for vision waivers that would permit

them to obtain an interstate CDL. Each of the drivers is

discussed more fully below.

! This brief was not authored in whole or in part by counsel

for any party, and no person or entity other than amici and their

counsel made a monetary contribution to the preparation or

submission of this brief.

2 For purposes of this brief, amici will use the term

“monocular” to refer to a person who meets the FHWA standard

in one eye but not both.

James Strickland, Sr. is a resident of North Carolina

who began driving tractor-trailers in 1991. In August of

1993, he lost sight in one eye and could therefore only

legally drive trucks intrastate. Since that time, he has

driven tractor-trailers 250,000 miles without an accident.

In 1995, Mr. Strickland applied for a waiver of the FHWA

vision standard. In late 1998, he updated his application,

requesting an “exemption” rather than a waiver under

the procedures established by the Transportation Equity

Act for the 21st Century, Pub. L. No. 105-178, 112 Stat. 107

(1998) (“TEA-21”). TEA-21 reconfirms the authority of the

FHWA to grant waivers from its vision standard, but now

uses the term “exemption” to describe the type of action

Mr. Strickland seeks. He is awaiting the FHWA’s decision

on his application.

Dorian Holladay, a resident of Arizona, George

Hahn, a resident of Wisconsin, and Glenn Gee, a resident

of Texas, have also applied for exemptions pursuant to

the FHWA regulations that were implemented following

the passage of TEA-21. Mr. Holladay, who lost his vision

in one eye when he was a child, has driven straight trucks

and tractor-trailers for the last 39 years. He has been self-

employed since 1988, during which time he has driven

over 1 million accident-free miles. Mr. Hahn, who lost his

vision in one eye when he was 18, has driven tractor-

trailers over 2.5 million accident-free miles over the past

25 years. Mr. Gee, who lost his vision in one eye as a

child, has driven both straight trucks and tractor-trailers

for the last 29 years. Over this time period, he has driven

1 million accident-free miles.

Richard Carlson, a resident of Minnesota, will soon

be granted an exemption by the FHWA. See Qualification

———————

of Drivers, Exemption Applications, 63 Fed. Reg. 66226,

66227 (Dec. 1, 1998) (Notice of Intent to Grant Applica-

tions). He lost his vision in one eye when he was a child.

He has been self-employed for the last ten years, during

which time he has driven over 1 million accident-free

miles.

David Rauenhorst, a resident of Minnesota, was

granted a waiver effective January 9, 1998. See Qualifica-

tion of Drivers, Waiver Application, 63 Fed. Reg. 1524

(Jan. 9, 1998) (Notice of Final Disposition). At the time he

applied for a waiver, he had driven for 22 years and 1

million miles without an accident.

Without a FHWA-issued waiver of the vision stan-

dard, a monocular driver’s employment opportunities are

severely restricted since many companies who carry

goods interstate are unable to hire these individuals. The

vision waiver permits monocular drivers to compete for

these jobs on an equal footing with other drivers. How-

ever, the waiver will become meaningless if employers

are free to disregard CDLs issued to drivers with mono-

cular vision despite the FHWA’s findings that these

drivers are safe and that it is in the public interest to

grant them waivers. As a result, amici have a substantial

interest in this case. Amici respectfully submit this brief to

aid the Court's understanding of the history of the vision

waiver program and its relationship to the Americans

with Disabilities Act (“ADA”) and § 504 of the Rehabilita-

tion Act of 1973 (“§ 504”). Both Petitioner and Respon-

dent have consented to the filing of this brief.

¢

SUMMARY OF ARGUMENT

The FHWA has adopted certain physical standards

that truck drivers must meet in order to obtain an inter-

state CDL. One of those standards, last revised in 1971,

sets out criteria related to vision, and would deny CDLs

to drivers whose vision in either eye falls below a certain

level. See 49 C.F.R. § 391.41(b)(10). In recent years, the

FHWA has acknowledged that its 1971 vision standard

does not measure the essential functions of the job of

driving a truck safely. The FHWA has therefore issued

waivers to several thousand monocular drivers, implicitly

acknowledging that strict enforcement of its vision stan-

dard would discriminate against those drivers in viola-

tion of § 504. In issuing those waivers, the FHWA found

that the monocular drivers it granted waivers to were as

safe as those drivers who met the underlying vision

standard itself and that issuance of the waivers would be

in the public interest.

Even though Respondent Hallie Kirkingburg had

obtained a CDL through the waiver procedure, Petitioner

Albertsons refused to hire him. It did so specifically

because of his disability. Rather than accepting the FHWA

findings that Mr. Kirkingburg was a safe driver, Albert-

sons insisted that he meet the very vision standard that

the FHWA has declined to enforce. Such reliance on a job

standard that does not measure the essential functions of

the job at issue violates the ADA. Albertsons cannot

simply ignore the FHWA’s decision and try to enforce a

more stringent and discriminatory standard.

The vision waiver program, contrary to Albertsons’

claim, was not an “experiment,” but rather was a means

of certifying monocular drivers the FHWA knew were

safe while gathering unbiased data which would provide

the basis for a new vision standard. The FHWA carefully

examined what was necessary to drive a truck in inter-

state commerce and assessed the individual records of

each driver to whom it proposed to issue a waiver. That

waiver procedure is authorized by the Motor Carrier

Safety Act, Pub. L. No. 98-554, 98 Stat. 2832 (1984)

(“MCSA”), and by the recently-enacted Transportation

Equity Act for the 21st Century. In contrast to the FHWA,

Albertsons simply required adherence to an outdated

standard, discriminating against Mr. Kirkingburg on the

basis of stereotypes and unfounded assumptions. The

Ninth Circuit’s decision should therefore be affirmed.

+

ARGUMENT

I. THE FEDERAL HIGHWAY ADMINISTRATION’S

VISION STANDARD DOES NOT MEASURE A

MONOCULAR DRIVER’S ABILITY TO OPERATE

A TRUCK SAFELY.

A. History And Effect Of The Vision Standard

Congress has granted the Department of Transporta-

tion (“DOT”) the authority to implement policies and

programs that contribute to the safety, speed, and effi-

ciency of transportation. See 49 U.S.C. § 101. Within the

DOT, the FHWA is the agency with the power to regulate

motor carrier safety. 49 U.S.C. §§ 104(a), (c). The FHWA

develops and implements Federal Motor Carrier Safety

Regulations (“FMCSRs”) that prohibit unqualified

persons from operating commercial motor vehicles

(“CMVs”) in interstate commerce. See 49 C.F.R.

§ 391.11(a).

To obtain a CDL to operate a truck in interstate

commerce, a driver must meet the criteria of 49 C.F.R.

§ 383.71, which include skill, knowledge, and certain

physical requirements. The physical requirements include

49 C.F.R. § 391.41(b)(10) (the “vision standard”). The

vision standard was first implemented in 1937 by the

Interstate Commerce Commission. See Qualifications of

Drivers, 57 Fed. Reg. 6793 (Feb. 28, 1992) (Advance

Notice of Proposed Rulemaking). The original standard

required “good eyesight in both eyes (either without

glasses or by correction with glasses), including adequate

perception of red and green colors.” Id. The vision stan-

dard was revised several times over the years to require

increased visual acuity. See id. at 6793-94. The current

vision standard has remained unchanged since 1971 and

requires that an individual have:

[D]istant visual acuity of at least 20/40 (Snellen)

in each eye without corrective lenses or visual

acuity separately corrected to 20/40 (Snellen) or

better with corrective lenses, distant binocular

acuity of at least 20/40 (Snellen) in both eyes

with or without corrective lenses, field of vision

of at least 70° in the horizontal meridian in each

eye, and the ability to recognize the colors of

traffic signals and devices showing standard

red, green, and amber.

49 C.ER. § 391.41(b)(10).

The FHWA established the current vision standard to

“prevent individuals who will present an unreasonable

and avoidable safety risk to other users of the highways

from being allowed to operate vehicles which, because of

their size or cargo, present a grave hazard.” Qualification

of Drivers, 57 Fed. Reg. 10295 (Mar. 25, 1992) (Notice of

Intent to Accept Applications for Waivers). Prior to the

introduction of the waiver program in 1992 which

allowed drivers with good vision in one eye and a proven

history of driving safety to obtain CDLs, the FHWA

enforced the vision standard as a mandatory prerequisite

to receiving an interstate CDL. Drivers who could not

meet the vision standard were denied a CDL and could

not legally be employed to drive a CMV in interstate

commerce.

Furthermore, since 1984 many states have adopted

the vision standard in response to the MCSA. See Quali-

fication of Drivers, 59 Fed. Reg. 50887, 50888 (Oct. 6,

1994) (Notice of Determination) (stating “Congress has

insisted on uniform [state] standards consistent with Fed-

eral regulations issued pursuant to the MCSA of 1984 and

has authorized programs to encourage states to adopt

those standards.”). As a result, prior to the 1992 introduc-

tion of a vision waiver program, monocular drivers with

impeccable safety records were often no longer able to

drive at all due to the rigid enforcement of the vision

standard. That enforcement had a significant financial

impact on monocular drivers, including several of the

amici since, as the FHWA has recognized, a license to

drive a CMV in interstate commerce can increase earning

potential. See 57 Fed. Reg. 10295.

In 1992, the FHWA finally acknowledged that mono-

cular vision drivers could compensate for their disability

and thus drive safely even if they did not meet the vision

standard. Pursuant to its 49 U.S.C. § 31136(e)(1) authority

to grant waivers that are consistent with the public inter-

est and the safe operation of CMVs, the FHWA instituted

a vision waiver program that permitted monocular CMV

operators who had demonstrated safety records to obtain

a CDL. By granting vision waivers to drivers it deter-

mined to be safe, the FHWA allowed monocular drivers

the same opportunities as other drivers while maintain-

ing the current level of highway safety. In 1998, Congress

reconfirmed FHWA’s authority to grant waivers of the

FHWA’s physical standards in the Transportation Equity

Act for the 21st Century, Pub L. No. 105-178, 112 Stat. 107

(1998); see also 63 Fed. Reg. 67600 (Dec. 8, 1998) (Interim

Final Rule Implementing TEA-21).

B. Monocular Drivers Can Be Otherwise Qualified

To Drive Safely In Interstate Commerce With-

out Meeting The FHWA Vision Standard.

The FHWA’s issuance of the waivers of the vision

standard has been integral to the FHWA’s ability to regu-

late highway safety while fulfilling its non-discrimination

obligations pursuant to § 504 of the Rehabilitation Act of

1973. As explained below, the vision standard does not

measure whether monocular drivers can drive safely, and

thus the FHWA would have violated § 504 if it had

continued to enforce that standard and deny CDLs to

monocula: drivers who could operate CMVs safely

despite their disability.

§ 504 of the Rehabilitation Act prohibits federal agen-

cies such as the FHWA from discriminating against

individuals based on their disabilities. The Rehabilitation

Act provides that:

No otherwise qualified individual with a dis-

ability in the United States . . . shall, solely by

reason of her or his disability, be excluded from

the participation in, be denied the benefits of, or

be subjected to discrimination under any pro-

gram or activity receiving Federal financial

assistance or under any program or activity con-

ducted by any Executive agency or by the

United States Postal Service.

29 U.S.C. § 794(a).

To establish a prima facie case of a § 504 violation, a

plaintiff must prove (1) that he has a disability; (2) that he

is otherwise qualified for the employment in question;

and (3) that he was excluded from employment solely on

the basis of his disability. Doe v. Univ. of Maryland Medical

System Corp., 50 F.3d 1261, 1265 (4th Cir. 1995). For pur-

poses of this discussion, amici will assume that individ-

uals with monocular vision are individuals with a

disability, while recognizing that this issue is before the

Court in this case. Furthermore, there is no dispute that

the FHWA has in the past denied monocular drivers

CDLs solely on the basis of their disability; i.e., because

their eyesight could not meet the visual acuity ratings in

49 C.F.R. § 391.41(b)(10). Thus the only determination to

be made in assessing the potential discriminatory effect

of the FHWA vision standard is whether monocular

drivers are otherwise qualified.

Pursuant to § 504, a qualified individual with a dis-

ability is “with respect to employment, a handicapped

10

person who, with reasonable accommodation, can per-

form the essential functions of the job in question.” 45

C.F.R. § 84.3(k)(1). FHWA regulations make clear that the

function essential to driving a CMV in interstate com-

merce is the ability to operate a CMV safely. See 49 C.F.R.

§ 383.1 (explaining that CDL standards were promulgated

to “help reduce or prevent truck and bus accidents, fatal-

ities, and injuries”); 57 Fed. Reg. at 10295 (“The purpose

of establishing vision standards for drivers of CMVs is to

prevent individuals who will present an unreasonable

and avoidable safety risk to other users of the highways

from being allowed to operate vehicles which, because of

their size or cargo, present a grave hazard.”).

Driving safely in interstate commerce is a general

ability that depends on many other specific abilities such

as the ability to change lanes properly, use signals appro-

priately, and monitor the air brake system. See 49 C.F.R.

§ 383.113. In its effort to ensure that only safe drivers are

licensed, the FHWA requires CDL applicants to meet the

standards set forth in the FMCSRs. The FHWA has

assumed that the visual acuity ratings that the FMCSRs

require will ensure that only safe drivers are allowed to

operate CMVs. The FHWA, however, is also obligated by

§ 504 to ensure that the vision standard only excludes

drivers because they are not safe and not merely because

they are monocular.

Therefore, to comply with § 504, the FHWA must

ensure that the criteria it imposes to ensure highway

safety actually measure whether each individual has the

ability to drive safely, which is the essential function of

driving a CMV. See Pandazides v. Virginia Bd. of Educ., 946

11

F.2d 345, 349 (4th Cir. 1991) (holding that qualified indi-

vidual need only fulfill the requirements of a job that

measure the position’s essential functions). Essential

functions are those functions that are necessary to the

successful performance of the job in question; marginal

functions are not included. See Southeastern Community

College v. Davis, 442 U.S. 397, 406-07 (1979). In other

words, there must be a close nexus between the essential

functions and the job position:

[Djefendants cannot merely mechanically

invoke any set of requirements and pronounce

the handicapped applicant or prospective

employee not otherwise qualified. The district

court must look behind the qualifications. To do

otherwise reduces the term “otherwise quali-

fied” and any arbitrary set of requirements to a

tautology.

Pandazides, 946 F.2d at 349. This Court has also held that

physical qualifications should be examined to determine

whether they are necessary to the position or service in

question. See Davis, 442 U.S. at 407. Furthermore, this

inquiry must be individualized in most cases and based

on approprisie findings of fact. See School Bd. of Nassau

County v. Arline, 480 U.S. 273, 287 (1987). All FMCSRs

pertaining to driver qualifications, including the physical

requirements, must therefore measure whether an indi-

vidual can safely operate a CMV in interstate commerce.

There is compelling evidence that the vision standard

does not actually measure a monocular individual's abil-

ity to drive safely and that rigid adherence to this

standard would discriminate against monocular drivers

who can drive safely. The legislative history of the ADA,

12

studies on monocular vision, and the FHWA’s issuance of

vision waivers to thousands of qualified monocular

drivers indicate that the vision standard by itself cannot be

relied on to determine whether monocular drivers are safe.

When Congress passed the ADA in 1990, members of

both the House and Senate expressed doubt as to whether

FHWA physical requirements were consistent with the

ADA and § 504. Congress expected the Secretary of

Transportation to “undertake a thorough review of these

regulations [FMCSRs] to ascertain whether the [physical]

standards conform with current knowledge about the

capabilities of persons with disabilities. . . . [and] make

any necessary changes within the two year period to

bring such regulations into compliance with the law.” H.

Rep. No. 101-485, Part 2, 101st Cong., 2d Sess. 57 (1990)

(House Committee on Education and Labor); see also H.

Rep. 101-485, Part 3, 10lst Cong., 2d Sess. 34 (1990)

(House Committee on the Judiciary); S. Rep. 101-116,

101st Cong., Ist Sess. 27-28 (1989) (Senate Committee on

Labor and Human Resources).

In response to Congress’ concern, the FHWA com-

missioned Ketron, Inc. to study the relationship between

vision deficiencies and safe driving and also reconsidered

an earlier study conducted by Bartow Associates, Inc. See

Rauenhorst v. U.S. Department of Trans., Federal Highway

Admin., 95 F.3d 715, 717-719 (8th Cir. 1996). The Ketron

study reported a lack of empirical data upon which to

find any correlation between driver safety and vision

disorders. See Qualification of Drivers, 57 Fed. Reg. 31458

(July 16, 1992) (Notice of Final Disposition). The prior

study conducted by Bartow Associates had reviewed the

driving studies that had been used in the past to support

13

the need for 49 C.F.R. § 391.41(b)(10). See Rauenhorst, 95

F.3d at 719; Bartow Associates, Inc., The Monocular Driver:

A Review of Distant Visual Acuity Risk Analysis Data (Sept.

1982) at 1 (“Bartow Study”). The Bartow Study found that

many of the previous studies supporting the FHWA’s

vision standard had been flawed due to “small sample

sizes, lack of controls, and the potential dominance of

other variables.” 57 Fed. Reg. at 6794 (summarizing Bar-

tow Study). Previous studies also failed to recognize that

visually impaired drivers learn to drive within their lim-

itations. Rauenhorst, 95 F.3d at 719. Furthermore, the find-

ings of the studies supporting the vision standard were

misleading since they used test subjects who had not yet

learned to compensate for their visual disorders, such as

binocular individuals with one eye closed or individuals

who had recently been blinded in one eye. Bartow Study

at 6, 37-38 & Summary. These studies also failed to con-

sider the monocular driver’s ability to use monocular

cues. Id. at 24.5 In fact, drivers acquired safe driving

records irrespective of their visual acuity. Id. at 16. The

Bartow Study reveals that some monocular drivers can

compensate for limitations in their vision, which is not

taken into account by a vision standard that only tests for

“good eyesight in both eyes.”* 57 Fed. Reg. at 6793.

* For instance, Mr. Kirkingburg’s doctor testified that

people with monocular vision develop “monocular cues” to

depth ion and that Mr. Kirkingburg could thus “easily

perform the driving tasks required of him.” (J.A. 152).

* This language appeared in the 1937 version of the vision

standard. While the specific formula for the vision standard has

changed, it still categorically excludes drivers with monocular

vision.

14

The inherent weakness in the vision standard is fur-

ther demonstrated by the fact that the FHWA no longer

applies it to assess the capabilities of monocular drivers.

The FHWA’s implementation of a vision waiver program

was designed to ameliorate the discriminatory impact of

using an absolute vision standard as the sole method by

which a driver can obtain a CDL. Faced with Congress’

order to revise physical standards that did not comply

with the ADA and § 504, the FHWA, on March 25, 1992,

announced its intention to accept applications for wa‘vers

from the vision requirements for carefully selected quali-

fied individuals. 57 Fed. Reg. 10295. Because the FHWA

lacked sufficient empirical data to support the current

vision standard as an accurate measure of safe driving,

the waiver program was to be a means of certifying

monocular drivers the FHWA knew were safe while gath-

ering unbiased data which would provide the basis for a

new vision standard. See id.

Since the FHWA could not identify a purely physical

visual standard that accurately measured safety, the

waiver program required monocular drivers to exhibit

alternative qualifications which did correlate to driver

safety. In fact, the FHWA has stated that these require-

ments hold monocular drivers to a “slightly higher stan-

dard” of safety. See 57 Fed. Reg. at 31459. The initial

waiver program required monocular individuals to meet

a number of requirements, including demonstrating three

years of CMV driving experience with: (1) no suspensions

or revocations of the individual’s driver’s license for

operating violations in any motor vehicle; (2) no report-

able CMV accidents in which the individual was cited for

a moving violation; (3) no convictions for a disqualifying

—->-_--— --..

15

offense under 49 C.F.R. § 383.51 or more than one serious

traffic violation under 49 C.F.R. § 383.5; and, (4) no more

than two convictions for any other CMV traffic violations.

See id. at 31460. Further, applicants who obtained waivers

were required to report any traffic violations or accidents

within 15 days of the occurrence and submit documenta-

tion of an annual ophthalmologist’s examination that cer-

tified the driver’s visual acuity was at least 20/40

(Snellen), corrected or uncorrected in the better eye. Id. at

31460-61. The reporting requirement thus allowed the

FHWA to reassess the waivers it granted to prevent any

unnecessary danger to the public.> See 57 Fed. Reg. at

31460.

Using a proven history of safe driving as a proxy for

safe driving ability was consistent with the safety studies

the FHWA had already completed. Those studies showed

that a crucial issue in safe driving is the ability to recog-

nize one’s limitations and then drive within those limita-

tions. See Bartow Study at 23. The FHWA therefore

reasonably believed that monocular individuals who had

proven histories of safe driving had learned to drive

within the limitations of their disability and could do so

safely. The FHWA further substantiated its position by re-

issuing findings that monocular drivers who met the crite-

ria of the waiver program and who received waivers did

not compromise the safe operation of CMVs. See Qualifica-

tion of Drivers, 59 Fed. Reg. 59386, 59389 (Nov. 17, 1994)

5 By September of 1994, the FHWA had revoked the

waivers of 201 drivers for failing to comply with the reporting

requirements. See 59 Fed. Reg. at 50890.

16

(Notice of Final Determination). The standards imple-

mented under the waiver program measured the ability to

use visual cues through experience and produced a group

of drivers with safety ratings that exceeded those of

drivers as a whole. See 59 Fed. Reg. at 50890.

The use of alternative safety criteria such as a proven

history of safe driving resulted in the FHWA licensing

thousands of safe monocular drivers, although the

agency drew criticism for its inability to formulate a new

vision standard applicable to all drivers. See 59 Fed. Reg.

at 59389-90. The vision standard itself was not revised

since the waiver program’s determination that certain

monocular drivers were safe was based primarily on

criteria not directly related to vision. Thus, while the

vision standard could for the time being be used to

certify binocular drivers, it did not measure the essential

function of safety with regard to monocular drivers.’

The history of the FHWA vision standard and the

waiver program demonstrates that the rigid vision stan-

dard does not accurately measure the essential functions

of the job in question and discriminates against individ-

uals with monocular vision. Thousands of monocular

6 The FHWA issued 2,411 vision waivers between 1992 and

1994. See 59 Fed. Reg. at 50889.

7 The FHWA indicated that the vision standard would be

changed when sufficient data existed to support a non-

discriminatory standard that could be applied to all drivers.

“The agency's ultimate goal is to adopt driver physical

qualification standards that are performance-based; that is, they

will reflect the actual physical requirements that fosters safe

operation of commercial vehicles.” 59 Fed. Reg. at 59390.

17

drivers have been recognized by the FHWA as safe opera-

tors of CMVs in interstate commerce and have demon-

strated their ability to drive safely through hundreds of

thousands of accident and violation free miles. Without a

waiver program these drivers would be denied CDLs on

the basis of a physical disability that does not impact

their driving skill and the FHWA would be in violation of

§ 504.

Il. ALBERTSONS’ REFUSAL TO ACCEPT FHWA

VISION WAIVERS DISCRIMINATES AGAINST

MONOCULAR DRIVERS IN VIOLATION OF THE

AMERICANS WITH DISABILITIES ACT.

Like the FHWA, Albertsons cannot rely on the vision

standard as an indication of whether Mr. Kirkingburg can

perform the essential functions necessary to be a truck

driver. Mr. Kirkingburg presented Albertsons with a valid

CDL, which confirms his ability to drive safely, and

Albertsons cannot refuse to accept that CDL simply

because it is held by a monocular driver. By imposing a

FHWA vision standard from which the agency has

exempted Mr. Kirkingburg, Albertsons is enforcing its

own discriminatory physical standards in violation of the

ADA. Monocular truck drivers such as Mr. Kirkingburg

and amici have invested considerable time and financial

resources to obtain waivers which reflect their ability to

drive safely and increase the job opportunities available

to them. Permitting private motor carriers such as Albert-

sons to categorically reject monocular drivers with valid

CDLs makes the waiver provisions meaningless and per-

petuates discrimination on the basis of the drivers’ dis-

ability.

18

A. The Vision Standard Is An Illegal Criterion

Upon Which To Deny A Monocular Driver

Employment Since It Does Not Measure A

Driver’s Ability To Operate A Truck Safely.

As previously discussed, the FHWA would have vio-

lated § 504 if it had continued to use the vision standard

as the only means of licensing monocular drivers. In this

case, since Albertsons has refused to accept Mr.

Kirkingburg’s waiver, it is doing exactly what the FHWA

cannot do: it is applying the vision standard as an abso-

lute and necessary test of an individual's ability to drive

safely. Albertsons has therefore violated the ADA, which

provides the same protection to individuals with disabil-

ities as does the Rehabilitation Act:

Except as otherwise provided in this chapter,

nothing in this chapter shall be construed to

apply a lesser standard than the standards

applied under title V of the Rehabilitation Act of

1973 (29 U.S.C. § 790 et seq.) or the regulations

issued by Federal agencies pursuant to such

title.

42 U.S.C. § 12201(a); see also Bragdon v. Abbott, 118 S.Ct.

2196, 2202 (1998) (stating “the directive [42 U.S.C.

§ 12201] requires us to construe the ADA to grant at least

as much protection as provided by the regulations imple-

menting the Rehabilitation Act.”).

As with § 504, an employee must be able to carry out

the essential functions of the position to be protected by

the ADA. 42 U.S.C. § 12111(8). Albertsons describes com-

pliance with the FHWA standards as one such essential

function. See Pet. brief at 35-36. Albertsons is therefore

using the vision standard as a necessary criterion for

19

employment as a truck driver. Id. However, having a

certain level of visual acuity in both eyes is not an essen-

tial function for that job, as the FHWA has recognized.

Rather, the essential function of driving a CMV for

Albertsons is being able to drive safely in interstate com-

merce, and Albertsons concedes as much.® Nevertheless,

Albertsons has chosen to measure the ability of all pro-

spective employees to perform this essential function by

requiring them to meet the FHWA’s vision standard, even

though it has done no independent assessment of

whether the standard is “job-related and consistent with

business necessity.” 42 U.S.C. § 12113(a). It offers no

scientific, practical or other evidence to show that mono-

cular drivers are less safe driving Albertsons’ trucks than

they would be driving anyone else’s. Albertsons has sim-

ply adopted the outdated FHWA standard.’

8 Albertsons at various points in its brief has identified the

ability to drive safely as a prerequisite, an essential function,

and as an affirmative defense. Pet. Brief at 30, 35-36, 38.

Regardless of how the ability to drive safely in interstate

commerce is categorized, the vision standard must measure

whether monocular drivers can drive safely or it is in violation

of the ADA.

% Albertsons incorrectly claims that it is not required to

justify its qualitative standards. See Pet. Brief at 33-34. While

Albertsons does not have to justify its performance-based

standards, it must justify standards which are not consistent

with business necessity. See Pandazides, 946 F.2d at 349 (stating

“(Djefendants cannot merely mechanically invoke any set of

requirements and pronounce the handicapped applicant or

prospective employee not otherwise qualified”). The only

justification Albertsons offers for requiring compliance with the

vision standard is its irrational fear that Mr. Kirkingburg is

unsafe. See Pet. Br. at 38.

20

In denying monocular drivers employment because

they cannot fulfill a requirement unrelated to the job,

Albertsons is essentially asserting that it has a legal right

to discriminate against individuals based on “stereotypic

assumptions not truly indicative of the individual ability

of such individuals to participate in, and contribute to

society.” 42 U.S.C. § 12101(a)(7). The ADA specifically

prohibits this type of discrimination. The FHWA vision

standard, standing alone, does not measure the essential

functions of driving a CMV in interstate commerce, and a

private employer like Albertsons cannot rely on that stan-

dard any more than the FHWA can.

B. A Private Employer Like Albertsons Cannot

Ignore The FHWA’s Waiver Of The Vision Stan-

dard For A Particular Driver.

The FHWA is the federal agency that possesses the

expertise and resources to determine the criteria neces-

sary to ensure vehicle and highway safety. Albertsons

argues that it can require its drivers to meet the FHWA

vision standard regardless of whether these drivers have

obtained vision waivers and valid CDLs. Pet. Br. at 30,

33-34. In essence, Albertsons is claiming that it can sim-

ply ignore the FHWA’s conclusions concerning the vision

standard, and substitute its own more stringent standard

even if that privately-adopted standard discriminates

against persons with disabilities. By refusing to recognize

the waiver procedure, Albertsons “cements in place obso-

lete or inaccurate administrative standards, even when

these standards are replaced by new benchmarks which

are carefully drafted to assure that improvements and

21

developments in the equipment of the vehicles and addi-

tional developments as to the nature and adaptations to a

disability can and do compensate successfully for certain

disabilities.” Rauenhorst, 95 F.3d at 722.

Albertsons’ position turns on the argument that

actions taken by the FHWA under the statutorily autho-

rized waiver procedure are flawed. However, contrary to

Albertsons’ assertion, the FHWA’s waiver program is not

a mere “experiment.” See Pet. Br. at 13, 41, 44-45. Rather,

it is an integral part of the federal highway safety regula-

tory structure. Albertsons is not free to disregard the

FHWA’s decision to issue a waiver to Mr. Kirkingburg,

since vision waivers are issued pursuant to FHWA regu-

lations that ensure such waivers maintain highway safety.

See 49 U.S.C. § 31136(e)(1).

When Mr. Kirkingburg re-applied to work at Albert-

sons, he presented a valid interstate CDL that had been

obtained following extensive administrative nroceedings

at the FHWA. While the FHWA has the authority to

promulgate minimum standards requiring that drivers

are physically able to operate CMVs safely, see 49 U.S.C.

§ 31136(a)(3), it also has the authority to waive FMCSRs

when a waiver is consistent with the public interest and

the safe operation of CMVs in interstate commerce. See 49

U.S.C. § 31136(e)(1). Waivers issued pursuant to the

waiver program were based on each individual's proven

ability to drive safely and the FHWA’s conclusion that the

“level of safety for CMV operations will remain

unchanged as a result.” 57 Fed. Reg. at 31459. The FHWA

announced its intention to accept applications for vision

waivers in the Federal Register, detailed the requirements

for a successful application, called for comments on the

22

proposal, responded to comments received, and subse-

quently announced its decision to grant waivers. See 57

Fed. Reg. at 10295; Qualification of Drivers, Waiver

Applications, 57 Fed. Reg. 23370 (Jun. 3, 1992) (Request

for Comments); 57 Fed. Reg. 31458. The issuance of these

waivers is a legally adopted modification of the standard

that is necessary to avoid illegal discrimination; it does

not, as Albertsons contends, lower the safety require-

ments. See 57 Fed. Reg. at 31459 (stating that in issuing

waivers the FHWA “is not relaxing its vision require-

ments, as contained in the FMCSRs.”).

Amici recognize that the FHWA does not prevent an

employer from adopting safety standards that are more

stringent than those in the FMCSRs. See 49 C.F.R.

§ 390.3(d). However, that does not give private motor

carriers a license to discriminate against otherwise quali-

fied drivers with disabilities. See 42 U.S.C. § 12112(a). To

the contrary, an employer cannot adopt a standard that

fails to take into account the particular features of the job

at issue and the particular abilities of the employee

involved. As explained above, Albertsons’ new standard

ignores the FHWA’s finding that the vision standard does

not measure the essential functions of this job. It also

ignores the fact that the FHWA based its decision to issue

Mr. Kirkingburg a waiver on an individualized assessment

of his qualifications.’° See 59 Fed. Reg. at 50890 (in discuss-

ing the original waiver program the FHWA explained that

10 The FHWA received 3,700 applications for vision waivers

between March 25 and December 31, 1992 but only granted

waivers to the 2,411 applicants which it determined were safe.

See 59 Fed. Reg. at 50888-89.

23

“individualized determinations were made on the basis of

complete data submitted by each applicant, to determine

eligibility for participation in the waiver program.”).

Instead of accepting a FHWA vision waiver, Albertsons

relied on a vision standard that the FHWA itself has recog-

nized does not provide for an individual assessment. See

57 Fed. Reg. at 10295 (explaining that one purpose of the

waiver program was to ultimately establish a “new vision

standard that could embrace the concept of ‘individual

determination’ ”). Albertsons has provided no evidence

that it has made an individual assessment. Albertsons has

also failed to show that the actual abilities necessary to

drive one of its CMVs differ from the requirements the

FHWA imposes before issuing a CDL. Rather than identi-

fying any unique functions of its own jobs, and rather than

assessing Mr. Kirkingburg’s own abilities, Albertsons sim-

ply resorted to “prejudice, stereotypes, or unfounded fear”

about disabilities, Arline, 480 U.S. at 287, and therefore

violated the ADA.!!

Essentially, Albertsons is seeking judicial review of

the waiver program itself. However, if Albertsons had a

legitimate argument with the FHWA’s waiver program,

the proper procedure would have been to challenge the

rulemaking directly through administrative proceedings

to “modify or repeal the rule itself.” Buck v. U.S. Dept. of

11 Albertsons suggests that a waiver of the vision standard

is actually an “accommodation” of Mr. Kirkingburg’s disability.

Pet. Br. at 44-45. But Mr. Kirkingburg needs no accommodation

to carry out the essential functions of driving a truck. The

FHWA has already determined that he can perform those

functions. Thus, the waiver is not an accommodation, but rather

the revision of an otherwise discriminatory standard.

24

Trans., 56 F.3d 1406, 1409 (D.C. Cir. 1995) (stating that

plaintiff’s challenge of the DOT’s refusal to grant waivers

from the hearing requirement amounted to an impermis-

sible “collateral attack upon the validity of the hearing

requirement itself.”); see also Cousins v. Secretary of U.S.

Dept. of Trans., 880 F.2d 603, 605 (1st Cir. 1989) (holding

that driver seeking to challenge DOT physical qualifica-

tions standard must proceed according to the Administra-

tive Procedure Act). Furthermore, judicial review of

FHWA rules, regulations, and final orders cannot be

properly sought in District Court as Albertsons has

attempted to do. See 28 U.S.C. § 2342 (Hobbs Act) (stating

that Court of Appeals is proper forum for judicial review

of DOT rules, regulations, and final orders).

Even if these procedural defects could be overlooked,

Albertsons has failed to provide the Court with “[i]nfor-

mation, views, arguments, delineating criteria, and statis-

tical data” which support a repeal of the waiver program.

See Cousins, 880 F.2d at 610. Albertsons has offered no

evidence to undermine the FHWA’s determination that

Kirkingburg is a safe driver; the only support Albertsons

does offer is its own assertion that the waiver program

was “experimental.” Pet. Br. at 44-45. However, the vision

waiver program was experimental only insofar as its

purpose was to ultimately reform the vision standard.

The DOT had yet to determine a standard which could be

universally applied without discriminating against safe

drivers with visual disorders. The FHWA findings that

the drivers who were issued waivers were safe was not

experimental in any way. Waivers issued by the FHWA

were based on each individual’s proven ability to drive

safely and the finding that the “level of safety for CMV

25

operation will remain unchanged as a result.” 57 Fed.

Reg. at 31459. In fact, the drivers who were granted

waivers exceeded the safety ratings of the driving popu-

lation as a whole. See 59 Fed. Reg. at 50890.

Nor can Albertsons rely on the D.C. Circuit's deci-

sion in Advocates for Highway and Auto Safety v. Fed. High-

way Admin., 28 F.3d 1288 (D.C. Cir. 1994) to support its

contention that the waiver program was experimental.

The D.C. Circuit vacated the waiver program on August

2, 1994, over a year and a half after Albertsons fired

Kirkingburg and then refused to accept his vision waiver.

Even if Albertsons could invoke the Advocates decision as

some sort of post hoc rationale for its decision, the

FHWA’s subsequent regulatory actions negate any

defense that Advocates might have otherwise offered. The

waiver program was vacated only because the FHWA

failed to properly document its rationale for considering

that vision waivers were consistent with the safe opera-

tion of CMVs; the D.C. Circuit's decision was not based

on a finding that monocular drivers were unsafe. The

court found that the FHWA had provided insufficient

evidence in the record in its July 16, 1992 Notice of Final

Disposition to support the issuance of vision waivers. See

id. at 1293-94. After the ruling in Advocates, the FHWA

quickly rectified its error by publishing additional find-

ings which supported its original waiver determination.

See 59 Fed. Reg. at 50889-90. The FHWA issued findings

which demonstrated a correlation between safe driving

history, the main criterion for receiving a waiver, and safe

driving ability, the essential function of driving a CMV,

based on studies conducted before the waiver program

was implemented as well as data obtained during the

26

waiver program. See 59 Fed. Reg. 50887; 59 Fed. Reg.

59386. The FHWA then reinstated the waivers issued

under the original waiver program, including that issued

to Mr Kirkingburg. See 59 Fed. Reg. 59386.

Finally, any suggestion that the waiver program was

“experimental” or otherwise flawed was undercut by

Congress’ enactment of the Transportation Equity Act for

the 21st Century, TEA-21. Pursuant to TEA-21, the DOT

may grant renewable two year “exemptions” from mini-

mum safety standards where “such exemption[s] would

likely achieve a level of safety that is equivalent to, or

greater than, the level that would be achieved absent

such exemption[s].” Pub. L. No. 105-178, Section 4007.

The FHWA has continued to issue vision waivers pur-

suant to TEA-21 using requirements similar to those of

the original waiver program. See Qualification of Drivers,

Exemption Applications, 63 Fed. Reg. 66226 (Dec. 1, 1998)

(Notice of Intent to Grant Applications). TEA-21 demon-

strates that the FHWA’s grant of waivers is not “experi-

mental,” but rather is an integral part of the regulatory

procedure created by Congress. An employer such as

Albertsons cannot ignore the results of that procedure in

a way that discriminates against persons with disabilities.

>

27

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

Douc as L. PARKER

Counsel of Record

Sunt. H. MANSUKHANI

Institute for Public Representation

Georgetown University Law Center

600 New Jersey Ave. N.W., Ste. 312

Washington, D.C. 20001

(202) 662-9535

Counsel for Amici Curiae

March 24, 1999