|||United States Supreme Court
|||119 S.Ct. 2162, 144 L.Ed.2d 518, 9 A.D. Cases 694, 1999.SCT.42135 <http://www.versuslaw.com>,
67 USLW 3683, 67 USLW 4560
|||June 22, 1999
||| ALBERTSONS, INC., PETITIONER
|||SYLLABUS BY THE COURT
|||OCTOBER TERM, 1998
|||ALBERTSONS, INC. v. KIRKINGBURG
|||NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
|||SUPREME COURT OF THE UNITED STATES
|||ALBERTSONS, INC. v. KIRKINGBURG
|||Certiorari To The United States Court Of Appeals For The Ninth Circuit
|||Argued April 28, 1999
|||Decided June 22, 1999
|||Before beginning a truckdriver's job with petitioner, Albertsons, Inc.,
in 1990, respondent, Kirkingburg, was examined to see if he met the Department
of Transportation's basic vision standards for commercial truckdrivers,
which require corrected distant visual acuity of at least 20/40 in each
eye and distant binocular acuity of at least 20/40. Although he has amblyopia,
an uncorrectable condition that leaves him with 20/200 vision in his left
eye and thus effectively monocular vision, the doctor erroneously certified
that he met the DOT standards. When his vision was correctly assessed at
a 1992 physical, he was told that he had to get a waiver of the DOT standards
under a waiver program begun that year. Albertsons, however, fired him for
failing to meet the basic DOT vision standards and refused to rehire him
after he received a waiver. Kirkingburg sued Albertsons, claiming that firing
him violated the Americans with Disabilities Act of 1990. In granting summary
judgment for Albertsons, the District Court found that Kirkingburg was not
qualified without an accommodation because he could not meet the basic DOT
standards and that the waiver program did not alter those standards. The
Ninth Circuit reversed, finding that Kirkingburg had established a disability
under the Act by demonstrating that the manner in which he sees differs
significantly from the manner in which most people see; that although the
ADA allowed Albertsons to rely on Government regulations in setting a job-related
vision standard, Albertsons could not use compliance with the DOT regulations
to justify its requirement because the waiver program was a legitimate part
of the DOT's regulatory scheme; and that although Albertsons could set a
vision standard different from the DOT's, it had to justify its independent
standard and could not do so here.
|||1. The ADA requires monocular individuals, like others claiming the Act's
protection, to prove a disability by offering evidence that the extent of
the limitation on a major life activity caused by their impairment is substantial.
The Ninth Circuit made three missteps in determining that Kirkingburg's
amblyopia meets the ADA's first definition of disability, i.e., a physical
or mental impairment that "substantially limits" a major life activity,
42 U. S. C. §12101(2)(A). First, although it relied on an Equal Employment
Opportunity Commission regulation that defines "substantially limits" as
requiring a "significant restrict[ion]" in an individual's manner of performing
a major life activity, see 29 CFR §1630.2(j)(ii), the court actually
found that there was merely a significant "difference" between the manner
in which Kirkingburg sees and the manner in which most people see. By transforming
"significant restriction" into "difference," the court undercut the fundamental
statutory requirement that only impairments that substantially limit the
ability to perform a major life activity constitute disabilities. Second,
the court appeared to suggest that it need not take account of a monocular
individual's ability to compensate for the impairment, even though it acknowledged
that Kirkingburg's brain had subconsciously done just that. Mitigating measures,
however, must be taken into account in judging whether an individual has
a disability, Sutton v. United Airlines, Inc., ante, at ___, whether the
measures taken are with artificial aids, like medications and devices, or
with the body's own systems. Finally, the Ninth Circuit did not pay much
heed to the statutory obligation to determine a disability's existence on
a case-by-case basis. See 42 U. S. C. §12101(2). Some impairments may
invariably cause a substantial limitation of a major life activity, but
monocularity is not one of them, for that category embraces a group whose
members vary by, e.g., the degree of visual acuity in the weaker eye, the
extent of their compensating adjustments, and the ultimate scope of the
restrictions on their visual abilities. Pp. 6-11.
|||2. An employer who requires as a job qualification that an employee meet
an otherwise applicable federal safety regulation does not have to justify
enforcing the regulation solely because its standard may be waived experimentally
in an individual case. Pp. 11-22.
|||(a) Albertsons' job qualification was not of its own devising, but was
the visual acuity standard of the Federal Motor Carrier Safety Regulations,
and is binding on Albertsons, see 49 CFR §391.11. The validity of these
regulations is unchallenged, they have the force of law, and they contain
no qualifying language about individualized determinations. Were it not
for the waiver program, there would be no basis for questioning Albertsons'
decision, and right, to follow the regulations. Pp. 11-14.
|||(b) The regulations establishing the waiver program did not modify the
basic visual acuity standards in a way that disentitles an employer like
Albertsons to insist on the basic standards. One might assume that the general
regulatory standard and the regulatory waiver standard ought to be accorded
equal substantive significance, but that is not the case here. In setting
the basic standards, the Federal Highway Administration, the DOT agency
responsible for overseeing the motor carrier safety regulations, made a
considered determination about the visual acuity level needed for safe operation
of commercial motor vehicles in interstate commerce. In contrast, the regulatory
record made it plain that the waiver program at issue in this case was simply
an experiment proposed as a means of obtaining data, resting on a hypothesis
whose confirmation or refutation would provide a factual basis for possibly
relaxing existing standards. Pp. 15-20.
|||(c) The ADA should not be read to require an employer to defend its decision
not to participate in such an experiment. It is simply not credible that
Congress enacted the ADA with the understanding that employers choosing
to respect the Government's visual acuity regulation in the face of an experimental
waiver might be burdened with an obligation to defend the regulation's application
according to its own terms. Pp. 21-22.
|||143 F. 3d 1228, reversed.
|||Souter, J., delivered the opinion for a unanimous Court with respect to
Parts I and III, and the opinion of the Court with respect to Part II, in
which Rehnquist, C. J., and O'Connor, Scalia, Kennedy, Thomas, and Ginsburg,
JJ., joined. Thomas, J., filed a Concurring opinion.
|||Court Below: 143 F. 3d 1228
|||The opinion of the court was delivered by: Justice Souter *
|||Opinion of the Court
|||ALBERTSONS, INC. v. KIRKINGBURG
|||____ U. S. ____ (1999)
|||On Writ Of Certiorari To The United States Court Of Appeals For The Ninth
|||* Justice Stevens and Justice Breyer join Parts I and III of this opinion.
|||The question posed is whether, under the Americans with Disabilities Act
of 1990, 104 Stat. 327, as amended, 42 U. S. C. §12101 et seq. (1994
ed. and Supp. III), an employer who requires as a job qualification that
an employee meet an otherwise applicable federal safety regulation must
justify enforcing the regulation solely because its standard may be waived
in an individual case. We answer no.
|||In August 1990, petitioner, Albertsons, Inc., a grocery-store chain with
supermarkets in several States, hired respondent, Hallie Kirkingburg, as
a truckdriver based at its Portland, Oregon, warehouse. Kirkingburg had
more than a decade's driving experience and performed well when Albertsons'
transportation manager took him on a road test.
|||Before starting work, Kirkingburg was examined to see if he met federal
vision standards for commercial truckdrivers. 143 F. 3d 1228, 1230-1231
(CA9 1998). For many decades the Department of Transportation or its predecessors
has been responsible for devising these standards for individuals who drive
commercial vehicles in interstate commerce.*fn1
Since 1971, the basic vision regulation has required corrected distant visual
acuity of at least 20/40 in each eye and distant binocular acuity of at
least 20/40. See 35 Fed. Reg. 6458, 6463 (1970); 57 Fed. Reg. 6793, 6794
(1992); 49 CFR §391.41(b)(10) (1998).*fn2
Kirkingburg, however, suffers from amblyopia, an uncorrectable condition
that leaves him with 20/200 vision in his left eye and monocular vision
in effect.*fn3 Despite Kirkingburg's
weak left eye, the doctor erroneously certified that he met the DOT's basic
vision standard, and Albertsons hired him.*fn4
|||In December 1991, Kirkingburg injured himself on the job and took a leave
of absence. Before returning to work in November 1992, Kirkingburg went
for a further physical as required by the company. This time, the examining
physician correctly assessed Kirkingburg's vision and explained that his
eyesight did not meet the basic DOT standards. The physician, or his nurse,
told Kirkingburg that in order to be legally qualified to drive, he would
have to obtain a waiver of its basic vision standards from the DOT. See
143 F. 3d, at 1230; App. 284-285. The doctor was alluding to a scheme begun
in July 1992 for giving DOT certification to applicants with deficient vision
who had three years of recent experience driving a commercial vehicle without
a license suspension or revocation, involvement in a reportable accident
in which the applicant was cited for a moving violation, conviction for
certain driving-related offenses, citation for certain serious traffic violations,
or more than two convictions for any other moving violations. A waiver applicant
had to agree to have his vision checked annually for deterioration, and
to report certain information about his driving experience to the Federal
Highway Administration, the agency within the DOT responsible for overseeing
the motor carrier safety regulations. See 57 Fed. Reg. 31458, 31460-61 (1992).*fn5
Kirkingburg applied for a waiver, but because he could not meet the basic
DOT vision standard Albertsons fired him from his job as a truckdriver.*fn6
In early 1993, after he had left Albertsons, Kirkingburg received a DOT
waiver, but Albertsons refused to rehire him. See 143 F. 3d, at 1231.
|||Kirkingburg sued Albertsons, claiming that firing him violated the ADA.*fn7
Albertsons moved for summary judgment solely on the ground that Kirkingburg
was "not `otherwise qualified' to perform the job of truck driver with or
without reasonable accommodation." App. 39-40; see id., at 119. The District
Court granted the motion, ruling that Albertsons had reasonably concluded
that Kirkingburg was not qualified without an accommodation because he could
not, as admitted, meet the basic DOT vision standards. The court held that
giving Kirkingburg time to get a DOT waiver was not a required reasonable
accommodation because the waiver program was "a flawed experiment that has
not altered the DOT vision requirements." Id., at 120.
|||A divided panel of the Ninth Circuit reversed. In addition to pressing
its claim that Kirkingburg was not otherwise qualified, Albertsons for the
first time on appeal took the position that it was entitled to summary judgment
because Kirkingburg did not have a disability within the meaning of the
Act. See id., at 182-185. The Court of Appeals considered but rejected the
new argument, concluding that because Kirkingburg had presented "uncontroverted
evidence" that his vision was effectively monocular, he had demonstrated
that "the manner in which he sees differs significantly from the manner
in which most people see." 143 F. 3d, at 1232. That difference in manner,
the court held, was sufficient to establish disability. Ibid.
|||The Court of Appeals then addressed the ground upon which the District
Court had granted summary judgment, acknowledging that Albertsons consistently
required its truckdrivers to meet the DOT's basic vision standards and that
Kirkingburg had not met them (and indeed could not). The court recognized
that the ADA allowed Albertsons to establish a reasonable job-related vision
standard as a prerequisite for hiring and that Albertsons could rely on
Government regulations as a basis for setting its standard. The court held,
however, that Albertsons could not use compliance with a Government regulation
as the justification for its vision requirement because the waiver program,
which Albertsons disregarded, was "a lawful and legitimate part of the DOT
regulatory scheme." Id., at 1236. The Court of Appeals conceded that Albertsons
was free to set a vision standard different from that mandated by the DOT,
but held that under the ADA, Albertsons would have to justify its independent
standard as necessary to prevent " `a direct threat to the health or safety
of other individuals in the workplace.' " Ibid. (quoting 42 U. S. C. §12113(b)).
Although the court suggested that Albertsons might be able to make such
a showing on remand, 143 F. 3d, at 1236, it ultimately took the position
that the company could not, interpreting Albertsons' rejection of DOT waivers
as flying in the face of the judgment about safety already embodied in the
DOT's decision to grant them, id., at 1237.
|||Judge Rymer Dissented. She contended that Albertsons had properly relied
on the basic DOT vision standards in refusing to accept waivers because,
when Albertsons fired Kirkingburg, the waiver program did not rest upon
"a rule or a regulation with the force of law," but was merely a way of
gathering data to use in deciding whether to refashion the still-applicable
vision standards. Id., at 1239.
|||Though we need not speak to the issue whether Kirkingburg was an individual
with a disability in order to resolve this case, that issue falls within
the first question on which we granted certiorari,*fn8
525 U. S. ___ (1999), and we think it worthwhile to address it briefly in
order to correct three missteps the Ninth Circuit made in its Discussion
of the matter. Under the ADA:
|||"The term `disability' means, with respect to an individual --"
|||"(A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual;"
|||"(B) a record of such an impairment; or"
|||"(C) being regarded as having such an impairment." 42 U. S. C. §12102(2).
|||We are concerned only with the first definition.*fn9
There is no dispute either that Kirkingburg's amblyopia is a physical impairment
within the meaning of the Act, see 29 CFR §1630.2(h)(1) (1998) (defining
"physical impairment" as "[a]ny physiological disorder, or condition ...
affecting one or more of the following body systems: ... special sense organs"),
or that seeing is one of his major life activities, see §1630.2(i)
(giving seeing as an example of a major life activity).*fn10
The question is whether his monocular vision alone "substantially limits"
|||In giving its affirmative answer, the Ninth Circuit relied on a regulation
issued by the Equal Employment Opportunity Commission, defining "substantially
limits" as "[s]ignificantly restrict[s] as to the condition, manner or duration
under which an individual can perform a particular major life activity as
compared to the condition, manner, or duration under which the average person
in the general population can perform that same major life activity." §1630.2(j)(ii).
The Ninth Circuit concluded that "the manner in which [Kirkingburg] sees
differs significantly from the manner in which most people see" because,
"[t]o put it in its simplest terms [he] sees using only one eye; most people
see using two." 143 F. 3d, at 1232. The Ninth Circuit majority also relied
on a recent Eighth Circuit decision, whose holding it characterized in similar
terms: "It was enough to warrant a finding of disability ... that the plaintiff
could see out of only one eye: the manner in which he performed the major
life activity of seeing was different." Ibid. (characterizing Doane v. Omaha,
115 F. 3d 624, 627-628 (1997)).*fn11
|||But in several respects the Ninth Circuit was too quick to find a disability.
First, although the EEOC definition of "substantially limits" cited by the
Ninth Circuit requires a "significant restrict[ion]" in an individual's
manner of performing a major life activity, the court appeared willing to
settle for a mere difference. By transforming "significant restriction"
into "difference," the court undercut the fundamental statutory requirement
that only impairments causing "substantial limitat[ions]" in individuals'
ability to perform major life activities constitute disabilities. While
the Act "addresses substantial limitations on major life activities, not
utter inabilities," Bragdon v. Abbott, 524 U. S. 624, 641 (1998), it concerns
itself only with limitations that are in fact substantial.
|||Second, the Ninth Circuit appeared to suggest that in gauging whether
a monocular individual has a disability a court need not take account of
the individual's ability to compensate for the impairment. The court acknowledged
that Kirkingburg's "brain has developed subconscious mechanisms for coping
with [his] visual impairment and thus his body compensates for his disability."
143 F. 3d, at 1232. But in treating monocularity as itself sufficient to
establish disability and in embracing Doane, the Ninth Circuit apparently
adopted the view that whether "the individual had learned to compensate
for the disability by making subconscious adjustments to the manner in which
he sensed depth and perceived peripheral objects," 143 F. 3d, at 1232, was
irrelevant to the determination of disability. See, e.g., Sutton v. United
Air Lines, Inc., 130 F. 3d 893, 901, n. 7 (CA10 1997) (characterizing Doane
as standing for the proposition that mitigating measures should be disregarded
in assessing disability); EEOC v. Union Pacific R. Co., 6 F. Supp. 2d 1135,
1137 (Idaho 1998) (same). We have just held, however, in Sutton v. United
Airlines, Inc., ante, at ___ (slip op., at 8), that mitigating measures
must be taken into account in judging whether an individual possesses a
disability. We see no principled basis for distinguishing between measures
undertaken with artificial aids, like medications and devices, and measures
undertaken, whether consciously or not, with the body's own systems.
|||Finally, and perhaps most significantly, the Court of Appeals did not
pay much heed to the statutory obligation to determine the existence of
disabilities on a case-by-case basis. The Act expresses that mandate clearly
by defining "disability" "with respect to an individual," 42 U. S. C. §12102(2),
and in terms of the impact of an impairment on "such individual," §12102(2)(A).
See Sutton, ante, at ___; (slip op., at 9); cf. 29 CFR pt. 1630, App., §1630.2(j)
(1998) ("The determination of whether an individual has a disability is
not necessarily based on the name or diagnosis of the impairment the person
has, but rather on the effect of that impairment on the life of the individual");
ibid. ("The determination of whether an individual is substantially limited
in a major life activity must be made on a case by case basis"). While some
impairments may invariably cause a substantial limitation of a major life
activity, cf. Bragdon, supra, at 642 (declining to address whether HIV infection
is a per se disability), we cannot say that monocularity does. That category,
as we understand it, may embrace a group whose members vary by the degree
of visual acuity in the weaker eye, the age at which they suffered their
vision loss, the extent of their compensating adjustments in visual techniques,
and the ultimate scope of the restrictions on their visual abilities. These
variables are not the stuff of a per se rule. While monocularity inevitably
leads to some loss of horizontal field of vision and depth perception,*fn12
consequences the Ninth Circuit mentioned, see 143 F. 3d, at 1232, the court
did not identify the degree of loss suffered by Kirkingburg, nor are we
aware of any evidence in the record specifying the extent of his visual
|||This is not to suggest that monocular individuals have an onerous burden
in trying to show that they are disabled. On the contrary, our brief examination
of some of the medical literature leaves us sharing the Government's judgment
that people with monocular vision "ordinarily" will meet the Act's definition
of disability, Brief for United States et al. as Amici Curiae 11, and we
suppose that defendant companies will often not contest the issue. We simply
hold that the Act requires monocular individuals, like others claiming the
Act's protection, to prove a disability by offering evidence that the extent
of the limitation in terms of their own experience, as in loss of depth
perception and visual field, is substantial.
|||Albertsons' primary contention is that even if Kirkingburg was disabled,
he was not a "qualified" individual with a disability, see 42 U. S. C. §12112(a),
because Albertsons merely insisted on the minimum level of visual acuity
set forth in the DOT's Motor Carrier Safety Regulations, 49 CFR §391.41(b)(10)
(1998). If Albertsons was entitled to enforce that standard as defining
an "essential job functio[n] of the employment position," see 42 U. S. C.
§12111(8), that is the end of the case, for Kirkingburg concededly
could not satisfy it.*fn13
|||Under Title I of the ADA, employers may justify their use of "qualification
standards ... that screen out or tend to screen out or otherwise deny a
job or benefit to an individual with a disability," so long as such standards
are "job-related and consistent with business necessity, and ... performance
cannot be accomplished by reasonable accommodation ... ." 42 U. S. C. §12113(a).
See also §12112(b)(6) (defining discrimination to include "using qualification
standards ... that screen out or tend to screen out an individual with a
disability ... unless the standard ... is shown to be job-related for the
position in question and is consistent with business necessity").*fn14
|||Kirkingburg and the Government argue that these provisions do not authorize
an employer to follow even a facially applicable regulatory standard subject
to waiver without making some enquiry beyond determining whether the applicant
or employee meets that standard, yes or no. Before an employer may insist
on compliance, they say, the employer must make a showing with reference
to the particular job that the waivable regulatory standard is "job-related
... and ... consistent with business necessity," see §12112(b)(6),
and that after consideration of the capabilities of the individual a reasonable
accommodation could not fairly resolve the competing interests when an applicant
or employee cannot wholly satisfy an otherwise justifiable job qualification.
|||The Government extends this argument by reference to a further section
of the statute, which at first blush appears to be a permissive provision
for the employer's and the public's benefit. An employer may impose as a
qualification standard "a requirement that an individual shall not pose
a direct threat to the health or safety of other individuals in the workplace,"
§12113(b), with "direct threat" being defined by the Act as "a significant
risk to the health or safety of others, which cannot be eliminated by reasonable
accommodation," §12111(3); see also 29 CFR §1630.2(r) (1998).
The Government urges us to read subsections (a) and (b) together to mean
that when an employer would impose any safety qualification standard, however
specific, tending to screen out individuals with disabilities, the application
of the requirement must satisfy the ADA's "direct threat" criterion, see
Brief for United States et al. as Amici Curiae 22. That criterion ordinarily
requires "an individualized assessment of the individual's present ability
to safely perform the essential functions of the job," 29 CFR §1630.2(r)
(1998), "based on medical or other objective evidence," Bragdon, 524 U.
S., at 649 (citing School Bd. of Nassau Cty. v. Arline, 480 U. S. 273, 288
(1987)); see 29 CFR §1630.2(r) (1998) (assessment of direct threat
"shall be based on a reasonable medical judgment that relies on the most
current medical knowledge and/or on the best available objective evidence").*fn15
|||Albertsons answers essentially that even assuming the Government has proposed
a sound reading of the statute for the general run of cases, this case is
not in the general run. It is crucial to its position that Albertsons here
was not insisting upon a job qualification merely of its own devising, subject
to possible questions about genuine appropriateness and justifiable application
to an individual for whom some accommodation may be reasonable. The job
qualification it was applying was the distant visual acuity standard of
the Federal Motor Carrier Safety Regulations, 49 CFR §391.41(b)(10)
(1998), which is made binding on Albertsons by §391.11: "a motor carrier
shall not ... permit a person to drive a commercial motor vehicle unless
that person is qualified to drive," by, among other things, meeting the
physical qualification standards set forth in §391.41. The validity
of these regulations is unchallenged, they have the force of law, and they
contain no qualifying language about individualized determinations.
|||If we looked no further, there would be no basis to question Albertsons'
unconditional obligation to follow the regulation and its consequent right
to do so. This, indeed, was the understanding of Congress when it enacted
the ADA, see infra, at 17-18.*fn16
But there is more: the waiver program.
|||The Court of Appeals majority concluded that the waiver program "precludes
[employers] from declaring that persons determined by DOT to be capable
of performing the job of commercial truck driver are incapable of performing
that job by virtue of their disability," and that in the face of a waiver
an employer "will not be able to avoid the [ADA's] strictures by showing
that its standards are necessary to prevent a direct safety threat," 143
F. 3d, at 1237. The Court of Appeals thus assumed that the regulatory provisions
for the waiver program had to be treated as being on par with the basic
visual acuity regulation, as if the general rule had been modified by some
different safety standard made applicable by grant of a waiver. Cf. Conroy
v. Aniskoff, 507 U. S. 511, 515 (1993) (noting the " `cardinal rule that
a statute is to be read as a whole' " (quoting King v. St. Vincent's Hospital,
502 U. S. 215, 221 (1991))). On this reading, an individualized determination
under a different substantive safety rule was an element of the regulatory
regime, which would easily fit with any requirement of 42 U. S. C. §§12113(a)
and (b) to consider reasonable accommodation. An employer resting solely
on the federal standard for its visual acuity qualification would be required
to accept a waiver once obtained, and probably to provide an applicant some
opportunity to obtain a waiver whenever that was reasonably possible. If
this was sound analysis, the District Court's summary judgment for Albertsons
|||But the reasoning underlying the Court of Appeals's decision was unsound,
for we think it was error to read the regulations establishing the waiver
program as modifying the content of the basic visual acuity standard in
a way that disentitled an employer like Albertsons to insist on it. To be
sure, this is not immediately apparent. If one starts with the statutory
provisions authorizing regulations by the DOT as they stood at the time
the DOT began the waiver program, one would reasonably presume that the
general regulatory standard and the regulatory waiver standard ought to
be accorded equal substantive significance, so that the content of any general
regulation would as a matter of law be deemed modified by the terms of any
waiver standard thus applied to it. Compare 49 U. S. C. App. §2505(a)(3)
(1988 ed.) ("Such regulation shall ... ensure that ... the physical condition
of operators of commercial motor vehicles is adequate to enable them to
operate the vehicles safely"),*fn17
with 49 U. S. C. App. §2505(f) (1988 ed.) ("After notice and an opportunity
for comment, the Secretary may waive, in whole or in part, application of
any regulation issued under this section with respect to any person or class
of persons if the Secretary determines that such waiver is not contrary
to the public interest and is consistent with the safe operation of commercial
motor vehicles").*fn18 Safe operation
is supposed to be the touchstone of regulation in each instance.
|||As to the general visual acuity regulations in force under the former
provision,*fn19 affirmative determinations
that the selected standards were needed for safe operation were indeed the
predicates of the DOT action. Starting in 1937, the federal agencies authorized
to regulate commercial motor vehicle safety set increasingly rigorous visual
acuity standards, culminating in the current one, which has remained unchanged
since it became effective in 1971.*fn20
When the FHWA proposed it, the agency found that "[a]ccident experience
in recent years has demonstrated that reduction of the effects of organic
and physical disorders, emotional impairments, and other limitations of
the good health of drivers are increasingly important factors in accident
prevention," 34 Fed. Reg. 9080, 9081 (1969) (Notice of Proposed Rule Making);
the current standard was adopted to reflect the agency's Conclusion that
"drivers of modern, more complex vehicles" must be able to "withstand the
increased physical and mental demands that their occupation now imposes."
35 Fed. Reg. 6458 (1970). Given these findings and "in the light of Discussions
with the Administration's medical advisers," id., at 6459, the FHWA made
a considered determination about the level of visual acuity needed for safe
operation of commercial motor vehicles in interstate commerce, an "area
[in which] the risks involved are so well known and so serious as to dictate
the utmost caution." Id., at 17419.
|||For several reasons, one would expect any regulation governing a waiver
program to establish a comparable substantive standard (albeit for exceptional
cases), grounded on known facts indicating at least that safe operation
would not be jeopardized. First, of course, safe operation was the criterion
of the statute authorizing an administrative waiver scheme, as noted already.
Second, the impetus to develop a waiver program was a concern that the existing
substantive standard might be more demanding than safety required. When
Congress enacted the ADA, it recognized that federal safety rules would
limit application of the ADA as a matter of law. The Senate Labor and Human
Resources Committee Report on the ADA stated that "a person with a disability
applying for or currently holding a job subject to [DOT standards for drivers]
must be able to satisfy these physical qualification standards in order
to be considered a qualified individual with a disability under title I
of this legislation." S. Rep. No. 101-116, pp. 27-28 (1998). The two primary
House Committees shared this understanding, see H. R. Rep. No. 101-485,
pt. 2, p. 57 (1990) (House Education and Labor Committee Report); id., pt.
3, at 34 (House Judiciary Committee Report). Accordingly, two of these Committees
asked "the Secretary of Transportation [to] undertake a thorough review"
of current knowledge about the capabilities of individuals with disabilities
and available technological aids and devices, and make "any necessary changes"
within two years of the enactment of the ADA. S. Rep. No. 101-116, supra,
at 27-28; see H. R. Rep. No. 101-485, pt. 2, at 57; see also id., pt. 3,
at 34 (expressing the expectation that the Secretary of Transportation would
"review these requirements to determine whether they are valid under this
Act"). Finally, when the FHWA instituted the waiver program it addressed
the statutory mandate by stating in its notice of final Disposition that
the scheme would be "consistent with the safe operation of commercial motor
vehicles," just as 49 U. S. C. App. §2505(f) (1988 ed.) required, see
57 Fed. Reg. 31460 (1992).
|||And yet, despite this background, the regulations establishing the waiver
program did not modify the general visual acuity standards. It is not that
the waiver regulations failed to do so in a merely formal sense, as by turning
waiver decisions on driving records, not sight requirements. The FHWA in
fact made it clear that it had no evidentiary basis for concluding that
the pre-existing standards could be lowered consistently with public safety.
When, in 1992, the FHWA published an "[a]dvance notice of proposed rulemaking"
requesting comments "on the need, if any, to amend its driver qualification
requirements relating to the vision standard," id., at 6793, it candidly
proposed its waiver scheme as simply a means of obtaining information bearing
on the justifiability of revising the binding standards already in place,
see id., at 10295. The agency explained that the "object of the waiver program
is to provide objective data to be considered in relation to a rulemaking
exploring the feasibility of relaxing the current absolute vision standards
in 49 CFR part 391 in favor of a more individualized standard." Ibid. As
proposed, therefore, there was not only no change in the unconditional acuity
standards, but no indication even that the FHWA then had a basis in fact
to believe anything more lenient would be consistent with public safety
as a general matter. After a bumpy stretch of administrative procedure,
see Advocates for Highway and Auto Safety v. FHWA, 28 F. 3d 1288, 1290 (CADC
1994), the FHWA's final Disposition explained again that the waivers were
proposed as a way to gather facts going to the wisdom of changing the existing
law. The waiver program "will enable the FHWA to conduct a study comparing
a group of experienced, visually deficient drivers with a control group
of experienced drivers who meet the current Federal vision requirements.
This study will provide the empirical data necessary to evaluate the relationships
between specific visual deficiencies and the operation of [commercial motor
vehicles]. The data will permit the FHWA to properly evaluate its current
vision requirement in the context of actual driver performance, and, if
necessary, establish a new vision requirement which is safe, fair, and rationally
related to the latest medical knowledge and highway technology." 57 Fed.
Reg. 31458 (1992). And if all this were not enough to show that the FHWA
was planning to give waivers solely to collect information, it acknowledged
that a study it had commissioned had done no more than " `illuminat[e] the
lack of empirical data to establish a link between vision disorders and
commercial motor vehicle safety,' " and " `failed to provide a sufficient
foundation on which to propose a satisfactory vision standard for drivers
of [commercial motor vehicles] in interstate commerce,' " Advocates for
Highway Safety, supra, at 1293 (quoting 57 Fed. Reg., at 31458).
|||In sum, the regulatory record made it plain that the waiver regulation
did not rest on any final, factual Conclusion that the waiver scheme would
be conducive to public safety in the manner of the general acuity standards
and did not purport to modify the substantive content of the general acuity
regulation in any way. The waiver program was simply an experiment with
safety, however well intended, resting on a hypothesis whose confirmation
or refutation in practice would provide a factual basis for reconsidering
the existing standards.*fn21
|||Nothing in the waiver regulation, of course, required an employer of commercial
drivers to accept the hypothesis and participate in the Government's experiment.
The only question, then, is whether the ADA should be read to require such
an employer to defend a decision to decline the experiment. Is it reasonable,
that is, to read the ADA as requiring an employer like Albertsons to shoulder
the general statutory burden to justify a job qualification that would tend
to exclude the disabled, whenever the employer chooses to abide by the otherwise
clearly applicable, unamended substantive regulatory standard despite the
Government's willingness to waive it experimentally and without any finding
of its being inappropriate? If the answer were yes, an employer would in
fact have an obligation of which we can think of no comparable example in
our law. The employer would be required in effect to justify de novo an
existing and otherwise applicable safety regulation issued by the Government
itself. The employer would be required on a case-by-case basis to reinvent
the Government's own wheel when the Government had merely begun an experiment
to provide data to consider changing the underlying specifications. And
what is even more, the employer would be required to do so when the Government
had made an affirmative record indicating that contemporary empirical evidence
was hard to come by. It is simply not credible that Congress enacted the
ADA (before there was any waiver program) with the understanding that employers
choosing to respect the Government's sole substantive visual acuity regulation
in the face of an experimental waiver might be burdened with an obligation
to defend the regulation's application according to its own terms.
|||The judgment of the Ninth Circuit is accordingly reversed.
|||It is so ordered.
|||Thomas, J., Concurring
|||ALBERTSONS, INC. v. KIRKINGBURG
|||____ U. S. ____ (1999)
|||SUPREME COURT OF THE UNITED STATES
|||ALBERTSONS, INC., PETITIONER v. HALLIE KIRKINGBURG
|||on writ of certiorari to the united states court of appeals for the ninth
|||[June 22, 1999]
|||Justice Thomas, Concurring.
|||As the Government reads the Americans With Disabilities Act of 1990, 104
Stat. 327, as amended, 42 U. S. C. §12101 et seq. (1994 ed., and Supp.
III), it requires that petitioner justify the Department of Transportation's
visual acuity standards as job related, consistent with business necessity,
and required to prevent employees from imposing a direct threat to the health
and safety of others in the workplace. The Court assumes, for purposes of
this case, that the Government's reading is, for the most part, correct.
Ante, at 13 and n. 15. I agree with the Court's decision that, even when
the case is analyzed through the Government's proposed lens, petitioner
was entitled to summary judgment in this case. As the Court explains, ante,
at 21-22, it would be unprecedented and nonsensical to interpret §12113
to require petitioner to defend the application of the Government's regulation
to respondent when petitioner has an unconditional obligation to enforce
the federal law.
|||As the Court points out, though, ante, at 11, DOT's visual acuity standards
might also be relevant to the question whether respondent was a "qualified
individual with a disability" under 42 U. S. C. §12112(a). That section
provides that no covered entity "shall discriminate against a qualified
individual with a disability because of the disability of such individual."
§12112(a). Presumably, then, a plaintiff claiming a cause of action
under the ADA bears the burden of proving, inter alia, that he is a qualified
individual. The phrase "qualified individual with a disability" is defined
|||"an individual with a disability who, with or without reasonable accommodation,
can perform the essential functions of the employment position that such
individual holds or desires. For the purposes of this subchapter, consideration
shall be given to the employer's judgment as to what functions of a job
are essential, and if an employer has prepared a written description before
advertising or interviewing applicants for the job, this description shall
be considered evidence of the essential functions of the job." §12111(8)
|||In this case, respondent sought a job driving trucks in interstate commerce.
The quintessential function of that job, it seems to me, is to be able to
drive a commercial truck in interstate commerce, and it was respondent's
burden to prove that he could do so.
|||As the Court explains, ante, at 14, DOT's Motor Carrier Safety Regulations
have the force of law and bind petitioner -- it may not, by law, "permit
a person to drive a commercial motor vehicle unless that person is qualified
to drive." 49 CFR §391.11 (1999). But by the same token, DOT's regulations
bind respondent who "shall not drive a commercial motor vehicle unless he/she
is qualified to drive a commercial motor vehicle." Ibid.; see also §391.41
("A person shall not drive a commercial motor vehicle unless he/she is physically
qualified to do so"). Given that DOT's regulation equally binds petitioner
and respondent, and that it is conceded in this case that respondent could
not meet the federal requirements, respondent surely was not "qualified"
to perform the essential functions of petitioner's truckdriver job without
a reasonable accommodation. The waiver program might be thought of as a
way to reasonably accommodate respondent, but for the fact, as the Court
explains, ante, at 15-20, that the program did nothing to modify the regulation's
unconditional requirements. For that reason, requiring petitioner to make
such an accommodation most certainly would have been unreasonable.
|||The result of this case is the same under either view of the statute.
If forced to choose between these alternatives, however, I would prefer
to hold that respondent, as a matter of law, was not qualified to perform
the job he sought within the meaning of the ADA. I nevertheless join the
Court's opinion. The Ninth Circuit below viewed respondent's ADA claim on
the Government's terms and petitioner's argument here appears to be tailored
around the Government's view. In these circumstances, I agree with the Court's
approach. I join the Court's opinion, however, only on the understanding
that it leaves open the argument that federal laws such as DOT's visual
acuity standards might be critical in determining whether a plaintiff is
a "qualified individual with a disability."
|||*fn1 See Motor Carrier Act, §204(a),
49 Stat. 546; Department of Transportation Act, §6(e)(6)(C), 80 Stat.
939-940; 49 CFR §1.4(c)(9) (1968); Motor Carrier Safety Act of 1984
§206, 98 Stat. 2835, as amended, 49 U. S. C. §31136(a)(3); 49
CFR §1.48(aa) (1998).
|||*fn2 Visual acuity has a number of
components but most commonly refers to "the ability to determine the presence
of or to distinguish between more than one identifying feature in a visible
target." G. von Noorden, Binocular Vision and Ocular Motility 114 (4th ed.
1990). Herman Snellen was a Dutch ophthalmologist who, in 1862, devised
the familiar letter chart still used to measure visual acuity. The first
figure in the Snellen score refers to distance between the viewer and the
visual target, typically 20 feet. The second corresponds to the distance
at which a person with normal acuity could distinguish letters of the size
that the viewer can distinguish at 20 feet. See C. Snyder, Our Ophthalmic
Heritage 97-99 (1967); D. Vaughan, T. Asburg, & P. Riordan-Eva, General
Ophthalmology 30 (15th ed. 1999).
|||*fn3 "Amblyopia," derived from Greek
roots meaning dull vision, is a general medical term for "poor vision caused
by abnormal visual development secondary to abnormal visual stimulation."
K. Wright et al., Pediatric Ophthalmology and Strabismus 126 (1995); see
id., at 126-131; see also Von Noorden, supra, at 208-245.
|||*fn4 Several months later, Kirkingburg's
vision was recertified by a physician, again erroneously. Both times Kirkingburg
received certification although his vision as measured did not meet the
DOT minimum requirement. See 143 F. 3d 1228, 1230, and n. 2 (CA9 1998);
App. 49-50, 297-298, 360-361.
|||*fn5 In February 1992, the FHWA issued
an advance notice of proposed rulemaking to review its vision standards.
See 57 Fed. Reg. 6793. Shortly thereafter, the FHWA announced its intent
to set up a waiver program and its preliminary acceptance of waiver applications.
See id., at 10295. It modified the proposed conditions for the waivers and
requested comments in June. See id., at 23370. After receiving and considering
the comments, the Administration announced its final decision to grant waivers
|||*fn6 Albertsons offered Kirkingburg
at least one and possibly two alternative jobs. The first was as a "yard
hostler," a truckdriver within the premises of Albertsons' warehouse property,
the second as a tire mechanic. The company apparently withdrew the first
offer, though the parties dispute the exact sequence of events. Kirkingburg
turned down the second because it paid much less than driving a truck. See
App. 14-16, 41-42.
|||*fn7 The ADA provides: "No covered
entity shall discriminate against a qualified individual with a disability
because of the disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges
of employment." 42 U. S. C. §12112(a).
|||*fn8 "Whether a monocular individual
is `disabled' per se, under the Americans with Disabilities Act." Pet. for
Cert. i (citation omitted).
|||*fn9 The Ninth Circuit also discussed
whether Kirkingburg was disabled under the third, "regarded as," definition
of "disability." See 143 F. 3d, at 1233. Albertsons did not challenge that
aspect of the Court of Appeals's decision in its petition for certiorari
and we therefore do not address it. See this Court's Rule 14.1(a); see also,
e.g., Yee v. Escondido, 503 U. S. 519, 535 (1992).
|||*fn10 As the parties have not questioned
the regulations and interpretive guidance promulgated by the EEOC relating
to the ADA's definitional section, 42 U. S. C. §12102, for the purposes
of this case, we assume, without deciding, that such regulations are valid,
and we have no occasion to decide what level of deference, if any, they
are due, see Sutton v. United Airlines, Inc., ante., at ___ (slip op., at
|||*fn11 Before the Ninth Circuit,
Albertsons presented the issue of Kirkingburg's failure to meet the Act's
definition of disability as an alternative ground for affirmance, i.e.,
for a grant of summary judgment in the company's favor. It thus contended
that Kirkingburg had "failed to produce any material issue of fact" that
he was disabled. App. 182. Parts of the Ninth Circuit's Discussion suggest
that it was merely denying the company's request for summary judgment, leaving
the issue open for factual development and resolution on remand. See, e.g.,
143 F. 3d, at 1232 ("Albertson's first contends that Kirkingburg failed
to raise a genuine issue of fact regarding whether he is disabled"); ibid.
("Kirkingburg has presented uncontroverted evidence showing that ... [his]
inability to see out of one eye affects his peripheral vision and his depth
perception"); ibid. ("if the facts are as Kirkingburg alleges"). Moreover
the Government (and at times even Albertsons, see Pet. for Cert. 15) understands
the Ninth Circuit to have been simply explaining why the company was not
entitled to summary judgment on this score. See Brief for United States
et al. as Amici Curiae 11, and n. 5 ("The Ninth Circuit therefore correctly
declined to grant summary judgment to petitioner on the ground that monocular
vision is not a disability"). Even if that is an accurate reading, the statements
the Ninth Circuit made setting out the standards governing the finding of
disability would have largely dictated the outcome. Whether one views the
Ninth Circuit's opinion as merely denying summary judgment for the company
or as tantamount to a grant of summary judgment for Kirkingburg, our rejection
of the sweeping character of the Court of Appeals's pronouncements remains
|||*fn12 Individuals who can see out
of only one eye are unable to perform stereopsis, the process of combining
two retinal images into one through which two-eyed individuals gain much
of their depth perception, particularly at short distances. At greater distances,
stereopsis is relatively less important for depth perception. In their distance
vision, monocular individuals are able to compensate for their lack of stereopsis
to varying degrees by relying on monocular cues, such as motion parallax,
linear perspective, overlay of contours, and distribution of highlights
and shadows. See Von Noorden, n. 1, supra, at 23-30; App. 300-302.
|||*fn13 Kirkingburg asserts that
in showing that Albertsons initially allowed him to drive with a DOT certification,
despite the fact that he did not meet the DOT's minimum visual acuity requirement,
he produced evidence from which a reasonable juror could find that he satisfied
the legitimate prerequisites of the job. See Brief for Respondent 36, 37;
see also id., at 6. But Albertsons' argument is a legal, not a factual,
one. In any event, the ample evidence in the record on Albertsons' policy
of requiring adherence to minimum DOT vision standards for its truckdrivers,
see, e.g., App. 53, 55-56, 333, would bar any inference that Albertsons'
failure to detect the discrepancy between the level of visual acuity Kirkingburg
was determined to have had during his first two certifications and the DOT's
minimum visual acuity requirement raised a genuine factual dispute on this
|||*fn14 The EEOC's regulations implementing
Title I define "[q]ualification standards" to mean "the personal and professional
attributes including the skill, experience, education, physical, medical,
safety and other requirements established by a covered entity as requirements
which an individual must meet in order to be eligible for the position held
or desired." 29 CFR §1630.2(q) (1998).
|||*fn15 This appears to be the position
taken by the EEOC in the Interpretive Guidance promulgated under its authority
to issue regulations to carry out Title I of the ADA, 42 U. S. C. §12116,
see 29 CFR pt. 1630, App., §§1630.15(b) and (c) (1998) (requiring
safety-related standards to be evaluated under the ADA's direct threat standard);
see also App. §1630.10 (noting that selection criteria that screen
out individuals with disabilities, including "safety requirements, vision
or hearing requirements," must be job-related, consistent with business
necessity, and not amenable to reasonable accommodation); EEOC v. Exxon
Corp., 1 F. Supp. 2d 635, 645 (ND Tex. 1998) (adopting the EEOC's position
that safety-related qualification standards must meet the ADA's direct-threat
standard). Although it might be questioned whether the Government's interpretation,
which might impose a higher burden on employers to justify safety-related
qualification standards than other job requirements, is a sound one, we
have no need to confront the validity of the reading in this case.
|||*fn16 The implementing regulations
of Title I also recognize a defense to liability under the ADA that "a challenged
action is required or necessitated by another Federal law or regulation,"
29 CFR §1630.15(e) (1998). As the parties do not invoke this specific
regulation, we have no occasion to consider its effect.
|||*fn17 This provision is currently
codified at 49 U. S. C. §31136(a)(3).
|||*fn18 Congress recently amended
the waiver provision in the Transportation Equity Act for the 21st Century,
Pub. L. 105-178, 112 Stat. 107. It now provides that the Secretary of Transportation
may issue a 2-year renewable "exemption" if "such exemption would likely
achieve a level of safety that is equivalent to, or greater than, the level
that would be achieved absent such exemption." See §4007, 112 Stat.
401, 49 U. S. C. A. §31315(b) (Oct. 1998 Supp.).
|||*fn19 At the time the FHWA promulgated
the current visual acuity standard, the agency was acting pursuant to §204(a)
of the Interstate Commerce Act, as amended by the Motor Carrier Act, 49
U. S. C. §304(a) (1970 ed.), see n. 1, supra, which likewise required
the agency to regulate to ensure "safety of operation."
|||*fn20 The Interstate Commerce Commission
promulgated the first visual acuity regulations for interstate commercial
drivers in 1937, requiring "[g]ood eyesight in both eyes (either with or
without glasses, or by correction with glasses), including adequate perception
of red and green colors." 2 Fed. Reg. 113120 (1937). In 1939, the vision
standard was changed to require "visual acuity (either without glasses or
by correction with glasses) of not less than 20/40 (Snellen) in one eye,
and 20/100 (Snellen) in the other eye; form field of not less than 45 degrees
in all meridians from the point of fixation; ability to distinguish red,
green, and yellow." 57 Fed. Reg. 6793-6794 (1992) (internal quotation marks
omitted). In 1952, the visual acuity standard was strengthened to require
at least 20/40 (Snellen) in each eye. Id., at 6794.
|||*fn21 Though irrelevant to the
Disposition of this case, it is hardly surprising that two years after the
events here the waiver regulations were struck down for failure of the FHWA
to support its formulaic finding of consistency with public safety. See
Advocates for Highway and Auto Safety v. FHWA, 28 F. 3d 1288, 1289 (CADC
1994). On remand, the agency "revalidated" the waivers it had already issued,
based in part on evidence relating to the safety of drivers in the program
that had not been included in the record before the District of Columbia
Circuit. See 59 Fed. Reg. 50887, 50889-50890 (1994); id., at 59386, 59389.
In the meantime the FHWA has apparently continued to want things both ways.
It has said publicly, based on a review of the data it collected from the
waiver program itself, that the drivers who obtained such waivers have performed
better as a class than those who satisfied the regulation. See id., at 50887,
50890. It has also recently noted that its medical panel has recommended
"leaving the visual acuity standard unchanged," see 64 Fed. Reg. 16518 (1999)
(citing F. Berson, M. Kuperwaser, L. Aiello, and J. Rosenberg, Visual Requirements
and Commercial Drivers, Oct. 16, 1998), a recommendation which the FHWA
has concluded supports its "view that the present standard is reasonable
and necessary as a general standard to ensure highway safety." 64 Fed. Reg.
16518 (1999). The waiver program in which Kirkingburg participated expired
on March 31, 1996, at which point the FHWA allowed all still-active participants
to continue to operate in interstate commerce, provided they continued to
meet certain medical and other requirements. See 61 Fed. Reg. 13338, 13345
(1996); 49 CFR §391.64 (1998). The FHWA justified this decision based
on the safety record of participants in the original waiver program. See
61 Fed. Reg. 13338, 13345 (1996). In the wake of a 1996 decision from the
United States Court of Appeals for the Eighth Circuit requiring the FHWA
to justify the exclusion of further participants in the waiver program,
see Rauenhorst v. United States Dept. of Transportation, FHWA, 95 F. 3d
715, 723 (1996), the agency began taking new applicants for waivers, see,
e.g., 63 Fed. Reg. 66226 (1998). The agency has now initiated a program
under the authority granted in the Transportation Equity Act for the 21st
Century, Pub. L. No. 105-178, 112 Stat. 107, to grant exemptions on a more
regular basis, see 63 Fed. Reg. 67600 (1998) (interim final rule implementing
the Transportation Equity Act for the 21st Century). The effect of the current
exemption program has not been challenged in this case, and we have no occasion
to consider it.
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