Kingdom of the One-Eyed: ADA advocates show a blind spot on safety by Walter Olson (from Reason, July 1998) Our topic this month is the interestingly favorable legal status these days of the one-eyed -- or, as it's more polite to call them, persons with monocular vision. For readers who came in late, the Clinton administration caused a stir last year when it filed suit against United Parcel Service, challenging the company's policy of insisting that drivers of its delivery trucks have sight in both eyes. That's unlawful discrimination against the visually disabled, said the Equal Employment Opportunity Commission, and it doesn't matter in the least that UPS's policy is based on concern for the safety of other road users rather than on any sort of malice or animus toward persons destitute of the usual ocular endowments. Nor does it matter that if a pedestrian happens to dart unexpectedly onto the roadway from the impaired side of one of its newly hired drivers, UPS stands to get sued for a fortune. After sifting through the cases, I can report that the complaint against UPS by no means represents a novel or unprecedented interpretation of the law. There's now a whole jurisprudence on employers' obligation to turn a blind eye, so to speak, to safety worries when the Hathaway Man shows up in quest of a hazardous-duty assignment: * The Supreme Court declined in January to review an Americans with Disabilities Act award against the city of Omaha for refusing to rehire a former policeman who'd lost sight in one eye and was suffering loss of peripheral vision in the other; the police chief believed those eyesight problems would interfere substantially with the policeman's duties. Estimated payout by the city: $200,000. * The U.S. Department of Justice extracted a $110,000 settlement from the city of Pontiac, Michigan, which had withdrawn a job offer to a firefighter after a pre-employment physical revealed he could see out of only one eye. Firefighters, like police officers, must be prepared for emergency situations in which visibility conditions may be poor even for those with unimpaired eyesight, and where accuracy in spotting dangers or aiming back at them can spell the difference between life and death. * Also in Michigan, the state Supreme Court confirmed that under state disabled-rights law, the Clawson Tank Co. could not exclude from a hazardous job a worker who'd lost an eye in an off-the-job incident. The company had noted that a significant share of injuries in its line of work were injuries to the eye, which were serious enough when they afflicted a worker who started out with two intact orbs and could be catastrophic if they deprived a person of his only remaining one. The ruling was not especially controversial: disabled-rights authorities generally agree that employers no longer enjoy any right to invoke disabled workers' own safety as a reason to exclude them from jobs. * "Lawsuit Prompts City To Ease Police Eyesight Standards," ran a Columbus Dispatch headline in 1995. The article reported on a successful challenge under the ADA to the Ohio capital's former requirement that recruits bring to the job vision of at least 20/40. The suit "will definitely result in the city coming up with less stringent standards," said city attorney Ron O'Brien, who told the newspaper that the previous eyesight standards had become legally untenable since the law's passage. * In February of this year, following up on its UPS suit, the EEOC sued Northwest Airlines for declining to hire a woman with vision in only one eye for a job which would require her, among other duties, to drive maintenance trucks from one aircraft to another at the Milwaukee airport. Northwest vowed to fight: "It's nonsensical on the face of it that we can't ask someone about their ability to do the job," company spokesman Jon Austin told the Milwaukee Journal Sentinel, adding that the runway ramps tend to be crowded with other ground service vehicles and personnel as well as aircraft. "We need people who can employ depth perception. It's a potentially hazardous situation if they can't. And we want our employees to be safe." * Last October -- you might want to remain seated for this one -- the U.S. Court of Appeals for the 9th Circuit gave the go-ahead to a lawsuit under Hawaii state disabled-rights law against Aloha Islandair, a passenger airline, for declining to hire a pilot with vision in only one eye. The decision was based on relatively narrow legal grounds, overturning a lower court opinion which had found that federal aviation laws pre-empted the right to file such suits under state law. Significantly, however, the appellate court dropped some broad hints that it expected the complainant to win when he got back to state court, the reason being that the Federal Aviation Administration has not banned persons with monocular vision from flying planes -- and so long as it hasn't, the court suggested, airlines shouldn't imagine that they can institute such hiring criteria on their own. Employers haven't lost all the cases. For instance, the American National Can Company prevailed in a lawsuit in the Iowa courts after it dismissed an operator who'd gotten into three accidents driving a forklift truck and whose subsequent medical exam revealed that he was legally blind in one eye. In another case, a New York state court allowed the Wackenhut Corporation to turn away a would-be armed security guard at Consolidated Edison's Indian Point nuclear power plant; the court noted that federal safety regulations require that persons seeking to work as nuclear plant guards have binocular vision. If you're an employer, then, there are two seemingly reliable ways to win a vision-safety suit under the ADA and its parallel state statutes. One is to hire all comers, then sit back and wait for the accidents to happen; if they're numerous and severe enough, you may then be permitted to remove (or at least transfer) the particular worker who got into them. Short of an actual trail of accidents, your task under the ADA -- one that's intended to be a difficult task, and usually is -- is to muster affirmative proof that a prospective risk is both "direct" and "substantial", with the threat of a back-pay award hanging over you should a court disagree. It isn't enough to show an "elevated" statistical risk, even if, averaged over a large number of hiring decisions, such statistical differences translate into a certainty of more accidents and injuries. Your second hope, as in the Con Ed case, is that some federal safety regulation can be found on the books that forbids you from hiring the person. This principle is emerging as the keystone of enforcement policy at the EEOC and its counterpart state agencies: they keep taking the position that if government regulators have set some minimum eyesight requirement for truckers or aviators it's improper for employers to hold out for any more than that, which is to say improper to make their workplaces any safer than is mandated by law. The government is comfortable, you understand, with the idea of a hiring practice's being either mandatory or forbidden; what gives it the heebie-jeebies is this uncanny in-between state of affairs sometimes known as "liberty." Already there are the first hints in the trade press of the inevitable employer reaction: a few businesses and trade associations, alarmed at the wave of ADA demands and looking for some line of defense, are beginning to think about working to get the various federal personnel- safety regulations tightened in hopes of tying their own hands and requiring them to reject applicants with borderline physical capacity. Since such regulations inevitably tend to be somewhat overbroad, an ironic result would be to bar an occasional individual with compromised vision from particular jobs even though the employer in question, left to its own discretion and knowing in some detail what the job does and does not require, would have judged him an acceptable risk. In the highway case, for instance, federal Department of Transportation regulations bar monocular drivers from obtaining new licenses to drive heavy tractor-trailers and other vehicles of more than 10,001 pounds, as well as vehicles transporting hazardous materials and passenger vehicles carrying more than 16 persons. When it comes to smaller vehicles and those of other classes, the regulations have heretofore left things up to the employer's discretion. The EEOC now argues that because UPS delivery trucks do not fall into the very heavy class, the company's safety rationale can be dismissed out of hand. Vehicle class and weight happen to be two of the traffic safety variables that federal regulators can conveniently reach, so they've proceeded to regulate along those lines. Yet the weight and class of a truck are only two variables -- perhaps not always the most important ones -- in a safety analysis. As it happens, there continue to roam the highways quite a few veteran monocular drivers who began operating heavy trucks in less-regulated days and were "grandfathered" into later rules, and some have compiled long accident-free records. Indeed, at one point DOT even tried to liberalize its waiver process to allow more monocular drivers to graduate to heavier trucks if they could demonstrate excellent safety records in lighter vehicles, but had to stop after it got successfully taken to court by a be-safe-or-we'll-sue group called Advocates for Highway and Auto Safety. It's quite possible, when you get down to it, that UPS's own internal rule makes more sense than the DOT regulation. Conceivably the loss of peripheral vision and close-range depth perception associated with monocularity might be a relatively minor disadvantage out on the interstate, where not many hazards are apt to emerge quite unexpectedly from the side of the driver's visual field. The same disadvantages might prove more serious in a regimen of stop-and-go driving in densely populated neighborhoods, with constant backing up and turns into residential driveways -- typical duties for a UPS delivery person. "Blindness" as a metaphor has come to have distinctly pejorative overtones, implying a foolish or willful overlooking of facts that are plain for all to see. That's a bad rap on those who struggle with literal vision impairments; there's no reason to think they're any less keen on apprehending truth than the rest of us, or any less capable of applying sound judgment to the truths they apprehend. But it's only too appropriate a metaphor for the diehard advocates of the ADA, who elect ever more foolishly and willfully to direct their attention away from the mounting dangers their pet law poses to the safety, as well as the liberty, of the nation they presume to govern. * * * Walter Olson (firstname.lastname@example.org) is senior fellow at the Manhattan Institute and the author most recently of The Excuse Factory: How Employment Law Is Paralyzing the American Workplace (The Free Press). Reason Magazine is a monthly magazine of "free minds and free markets." Check out its Web site at http://www.reason.com.
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