OCTOBER TERM, 1998
Syllabus
ALBERTSON'S, INC.
v. KIRKINGBURG
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 98-591. Argued April 28, 1999-Decided June 22, 1999
Before beginning a truckdriver's job with petitioner,
Albertson's, 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. Albertson's, however, fired him for failing to
meet the basic DOT vision standards and refused to rehire him after
he received a waiver. Kirkingburg sued Albertson's, claiming that
firing him violated the Americans with Disabilities Act of 1990
(ADA). In granting summary judgment for Albertson's, 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 Albertson's to rely on
Government regulations in setting a job-related vision standard,
Albertson's 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 Albertson's
could set a vision standard different from the DOT's, it had to
justify its independent standard and could not do so here.
Held:
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,
556
Syllabus
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
482, 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. 562-567.
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. 567-578.
(a) Petitioner's 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 Albertson's, 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 petitioner's
decision, and right, to follow the regulations. pp. 567-570.
(b) The regulations establishing the waiver program did not
modify the basic visual acuity standard in a way that disentitles
an employer like Albertson's to insist on the basic standard. 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 Admin-
557
istration, 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. 570-576.
(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. 577-578.
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,
post, p. 578.
Corbett Gordon argued the cause for petitioner. With her
on the briefs were
Heidi Guettler and
Kelliss
Collins.
Scott N.
Hunt argued the cause for respondent.
With him on the brief was
Richard C.
Busse.
Edward C. DuMont argued the cause for the United States et al.
as amici curiae urging affirmance. On the brief were Solicitor
General Waxman, Acting Assistant Attorney General Lee, Deputy
Solicitor General Underwood, James A. Feldman, Jessica Dunsay
Silver, Timothy
J. Moran, Philip B. Sklover, Lorraine C.
Davis, and Robert
J. Gregory.
*
*Briefs of
amici curiae urging reversal were filed for
the American Trucking Associations, Inc., et al. by
James D.
Holzhauer, Timothy S.
Bishop, and
Robert Digges;
for the Equal Employment Advisory Council et al. by
Ann
Elizabeth Reesman, Corrie L. Fischel, Stephen A. Bokat, and
Robin S.
Conrad; and for the United Parcel Service of
America, Inc.,
558
JUSTICE SOUTER delivered the opinion of the Court. * The
question posed is whether, under the Americans with Disabilities
Act of 1990 (ADA or Act), 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.
I
In August 1990, petitioner, Albertson's, Inc., a grocerystore
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 petitioner's 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 and its predecessors have been
responsible for devising these standards for individuals who drive
commercial vehicles in interstate commerce.1 Since 1971, the basic
vision regulation has required corrected distant visual acuity of
at least 20/40 in each eye
by William
J. Kilberg, Thomas G. Hungar, Pamela L.
Hemminger, and Patricia S. Radez.
Briefs of
amici curiae urging affirmance were filed for
Justice for All et al. by
Catherine A. Hanssens, Beatrice Dohrn,
Bennett Klein, and
Wendy Parmet; for the National
Employment Lawyers Association by
Gary Phelan, Paula A.
Brantner, and
Daniel S.
Goldberg; and for James
Strickland, Sr., et al. by
Douglas L. Parker.
*JUSTICE STEVENS and JUSTICE BREYER join Parts I and III of this
opinion.
1 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).
559
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).2 Kirkingburg, however, suffers from
amblyopia, an uncorrectable condition that leaves him with 20/200
vision in his left eye and monocular vision in effect.3 Despite
Kirkingburg's weak left eye, the doctor erroneously certified that
he met the DOT's basic vision standards, and Albertson's hired
him.4
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
2 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).
3 "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.
4 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.
560
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 (FHW A or Administration), the agency within the DOT
responsible for overseeing the motor carrier safety regulations.
See 57 Fed. Reg. 31458, 31460-31461 (1992).5 Kirkingburg applied
for a waiver, but because he could not meet the basic DOT vision
standard Albertson's fired him from his job as a truckdriver.6 In
early 1993, after he had left Albertson's, Kirkingburg received a
DOT waiver, but Albertson's refused to rehire him. See 143 F. 3d,
at 1231.
Kirkingburg sued Albertson's, claiming that firing him violated
the ADA.7 Albertson's moved for summary judgment
5 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 in
July.
6 Albertson's offered Kirkingburg at least one and possibly two
alternative jobs. The first was as a "yard hostler," a truckdriver
within the premises of petitioner's 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.
7The 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,
561
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 Albertson's 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."
I d., at 120.
A divided panel of the Ninth Circuit reversed. In addition to
pressing its claim that Kirkingburg was not otherwise qualified,
Albertson's 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
Albertson's 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
Albertson's to establish a reasonable job-related vision standard
as a prerequisite for hiring and that Albertson's could rely on
Government regulations as a basis for setting its standard. The
court held, however, that Albertson's could not use compli-
or discharge of employees, employee compensation, job training,
and other terms, conditions, and privileges of employment." 42 U.
S. C. § 12112(a).
562
ance with a Government regulation as the justification for its
vision requirement because the waiver program, which Albertson's
disregarded, was "a lawful and legitimate part of the DOT
regulatory scheme."
I d., at 1236. The Court of Appeals
conceded that Albertson's was free to set a vision standard
different from that mandated by the DOT, but held that under the
ADA, Albertson's 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 Albertson's
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 petitioner's 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 Albertson's had
properly relied on the basic DOT vision standards in refusing to
accept waivers because, when Albertson's 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.
II
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,s 525 U. S. 1064 (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:
8 "Whether a monocular individual is 'disabled' per se, under
the Americans with Disabilities Act." Pet. for Cert. i (citation
omitted).
563
"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.9 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).l0 The question is whether his
monocular vision alone "substantially limits" Kirkingburg's
seeing.
In giving its affirmative answer, the Ninth Circuit relied on a
regulation issued by the Equal Employment Opportunity Commission
(EEOC), 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 gen-
9 The Ninth Circuit also discussed whether Kirkingburg was
disabled under the third, "regarded as," definition of
"disability." See 143 F. 3d, at 1233. Albertson's 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).
10 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 479-480.
564
eral 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)).11
But in several respects the Ninth Circuit was too quick to find
a disability. First, although the EEOC definition
11 Before the Ninth Circuit, Albertson's 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 Albertson's, 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 the
same.
565
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 (CAlO 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 482, 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
566
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 483; 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 substantiallimitation 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,12 consequences the
Ninth
12 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,
supra n. 2, at 23-30; App.
300-302.
567
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 restrictions.
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 medicalliterature
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.
III
Petitioner's 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 Albertson's 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
Albertson's 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.13
13 Kirkingburg asserts that in showing that Albertson's
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 petitioner's argument is a legal, not a factual, one. In any
event, the ample evidence in the record on petitioner's policy of
requiring adherence to minimum DOT vision standards for its
truckdrivers, see,
e. g.,
568
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 .... " § 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").14
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 "jobrelated
... 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.
App. 53, 55-56, 333, would bar any inference that petitioner's
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 issue.
14 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).
569
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 that 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").15
15 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
570
Albertson's 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 Albertson's 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 Albertson's 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
petitioner's unconditional obligation to follow the regulations and
its consequent right to do so. This, indeed, was the understanding
of Congress when it enacted the ADA, see
infra, at
573-574.16 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
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.
16 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.
571
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
Albertson's was error.
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 Albertson's 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
572
condition of operators of commercial motor vehicles is adequate
to enable them to operate the vehicles safely"),17 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").18 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,19 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 1971.20 When
17 This provision is currently codified at 49 U. S. C. §
31136(a)(3).
18 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. § 31315(b) (1994 ed., Supp.
IV).
19 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."
20 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,
573
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."
I d., 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."
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.
574
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, 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, 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 FHW A 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
575
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 FHW A 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 FHW A 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 and Auto Safety, supra, at
1293 (quoting 57 Fed. Reg. 31458 (1992)).
576
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.21
21 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 FHW A
to justify the exclusion of further participants in the waiver
program, see
Rauenhorst v.
United States Dept. of
Transporta-
577
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 Albertson's
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 caseby-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
tion, 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.
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.
578
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.
JUSTICE THOMAS, concurring.
As the Government reads the Americans with Disabilities Act of
1990 (ADA or Act), 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 (DOT) 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 569, 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 577 and this page, 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
federallaw.
As the Court points out, though,
ante, at 567, 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."
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 to mean:
579
"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) (emphasis added).
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 570, 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 571-576, that the program did
nothing to modify the regulation's unconditional requirements.
580
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."
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