# 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

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

TL cee kbc dbbs ccs otbbeecerececcccce 24
a a Bs errr passim

iv

TABLE OF AUTHORITIES — Continued

Page
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GB UGA... B TRRESee whee ccccescpceseecsrisgiseubenas 18
GE UGA. © BERR 6s 0ncescune ctenes secsenesasannan 22
42 U.S.C. § ERROR « win dnnddcacpeveesdsagy ¥bemeuen 19
BS CBA. BS TSG vvecteccctaccesevedessenidenviaas 18
GD UB. © Fie svcccvccccsstoccccchatectsnecnmeranns 5
@ USA... & BEG cccccesnccrecsavasdisaddabacknueeant 5
DD DBA. & GG cdnscecccosdctsccscnecisesseuunaens 5
BD UDA. B TE Seee 0.00 bdvsusesceneuhccenunsnasen 21
@ UBL. GB FRees 0005 cpctacviisvupteesnunséoe 8, 21
REGULATIONS
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BD CHAE Bh Bi cdc vccayvocsecsabndtevaccébeneadens 15
GD CARs BH Fee + cvcccisnedcvactvaccdcos veducnmees 15
BD CHAR, © Tees cveccdediccgedécccdacn selbeus vveus 6
D> Cs © Ge avin conbcccsdicnvcacesdesbsakans 10
@ CAR, © Fe kbc ccdecc cevensecsésehissdaevenks 22
BD CAE. & FP eeeee cng ccvcuvccesuccoséeuasbepiwenes 6
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0238%3A17. Public record. Not legal advice.