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In the Land of the ADA, the One-Eyed Man Is King
MONDAY, JUNE 22, 1998

Rule of Law

By Walter Olson

Our topic today is the interestingly favorable legal status of the one-eyed—or, as it's more polite to call them, persons with monocular vision. The Clinton administration caused a stir last year when it filed suit against United Parcel Service, challenging the company’s policy of insisting that its drivers have sight in both eyes.

That's unlawful discrimination against the visually disabled, said the Equal Employment Opportunity Commission, and it doesn't matter that UPS's policy is based on concern for the safety of other road users rather than on any sort of animus towards 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 is not based on 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:

The Supreme Court declined in January to review an Americans With Disabilities Act award against 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 problems would interfere with the policeman's duties. Estimated payout by the city: $200,000.

The Department of Justice extracted a $110,000 settlement from the city of Pontiac, Mich., which had withdrawn a job offer to a firefighter after a pre-employment physical revealed he could see out of only one eye.

Also in Michigan, the state Supreme Court confirmed that 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 knew that a significant share of injuries in its line of work were injuries to the eye, which could be catastrophic to a worker with only one eye. The ruling was not especially controversial: Disabled-rights authorities generally agree that employers no longer enjoy any right to invoke disabled worker s' own safety as a reason to exclude them from jobs.

"Lawsuit Prompts City To Ease Police Eyesight Standards" ran a Columbus (Ohio) Dispatch headline in 1995. The article reported on a successful challenge under the ADA to the city's former requirement that recruits bring to the job vision of at least 20/40. The suit "will definitely result in the city coming up with less stringent standards," said city attorney Ron O'Brien, who told the newspaper the previous eyesight standards had become legally untenable since the law's passage.

In February, 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 that would require her to drive maintenance trucks from one aircraft to another at the Milwaukee airport. Northwest vowed to fight.

· 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 refusing to hire a pilot with vision in only one eye. 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. 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. American National Can Co. 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 Wackenhut Corp. to turn away a would-be armed security guard at a 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 ways to win a vision-safety suit. 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. Short of an actual trail of accidents, your task under the ADA 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.

Your second hope 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 take 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. In other words, it's improper for an employer to make its workplaces any safer than is mandated by law.

Already there are the first hints in the trade press of the inevitable employer reaction: A few businesses and trade associations, alarmed at the wave of ADA demands and looking for some line of defense, are beginning to think about how to get federal personnel-safety regulations tightened in hopes of tying their own hands and requiring them to reject applicants with borderline physical capacity. An ironic result would be to bar an occasional individual with compromised vision from particular jobs even though the employer in question, left to its own discretion and knowing in some detail what the job does and does not require, would have judged him an acceptable risk.

"Blindness" as a metaphor has come to have distinctly pejorative overtones, implying a foolish or willful overlooking of facts that are plain for all to see. That's a bad rap on those who struggle with literal vision impairments. But it's only too appropriate a metaphor for the diehard advocates of the ADA, who elect ever more foolishly and willfully to direct their attention away from the mounting dangers their pet law poses to the safety, as well as the liberty, of the nation they presume to govern.

Mr. Olson is senior fellow at the Manhattan Institute. This article is adapted from the July Issue of Reason magazine.

©1998 The Wall Street Journal

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