Kingdom of the One-Eyed

ADA advocates show a blind spot on safety.

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The U.S. Department of Justice extracted a $110,000 settlement from the city of Pontiac, Michigan, which had withdrawn a job offer to a firefighter after a pre-employment physical revealed he could see out of only one eye.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 police 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 preempted 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 Corp. 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 difficult, 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 it's 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."

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