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which had withdrawn a job offer to a firefighter after a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 (hambo@mags.net) 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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