ALBERTSONS, INC. v. KIRKINGBURG, 527 U.S. 555 (1999) 119 S.Ct. 2162
ALBERTSONS, INC., PETITIONER v. HALLIE 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,
Page 556
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 C.F.R. § 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) Petititoner'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 C.F.R. § 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 Administration,
Page 557
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. 557.
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 respondnet. 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 Underwook, James A. Feldman, Jessica Dunsay Silver, Timothy
J. Moran, Philip B. Sklover, Lorraine C. Davis, and Robert J. Gregory.[fn*]
[fn*] Briefs of amici curiae urging reversal were filed for the American
Trucking Associations, Inc., er 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.,
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 Lawers Association by
Gary Phelan, Paula A. Brantner, and Daniel S. Goldberg; and for James
Strickland, Sr., et al. by Douglas L. Parker.
Page 558
JUSTICE SOUTER delivered the opinion of the Court.[fn*]
[fn*] 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 (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 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 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 its predecessors have 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
Page 559
and distant binocular acuity of at least 20/40. See
35 Fed. Reg. 6458, 6463 (1970); 57 Fed. Reg. 6793, 6794 (1992);
49 C.F.R. § 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 standards, and Albertson's
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
Page 560
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
(FHWA), the agency within the DOT responsible for overseeing
the motor carrier safety regulations. See 57 Fed. Reg. 31458,
31460-31461 (1992).[fn5] 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.[fn6] 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.[fn7] Albertson's moved for summary judgment
Page 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."
Id., 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
compliance
Page 562
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." Id., 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,[fn8] 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:
Page 563
"The term `disability' means, with respect to an individual
â€â€
"(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 C.F.R. § 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" Kirkingburg's seeing.
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
Page 564
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
Page 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 (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 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
Page 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 C.F.R. 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
Page 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 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.
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 C.F.R. § 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.[fn13]
Page 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").[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.
Page 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 C.F.R. § 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 C.F.R. § 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 C.F.R. § 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]
Page 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 C.F.R. § 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.[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
Page 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
Page 572
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
Page 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." 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."
Page 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 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
Page 575
to be considered in relation to a rulemaking exploring the
feasibility of relaxing the current absolute vision standards
in 49 C.F.R. 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). (1992)
Page 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.[fn21]
Page 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
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
Page 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.
[fn1] See Motor Carrier Act, § 204(a), 49 Stat. 546; Department of
Transportation Act, § 6(e)(6)(C), 80 Stat. 939-940;
49 C.F.R. § 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 C.F.R. § 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 in July.
[fn6] 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.
[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. 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).
[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 479-480.
[fn11] 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.
[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, supra n. 2, at 23-30;
App. 300-302.
[fn13] 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 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., 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.
[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 C.F.R. § 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 C.F.R. 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 C.F.R. § 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. § 31315(b) (1994 ed., Supp. IV).
[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 C.F.R. § 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.
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 federal law.
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:
Page 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 C.F.R. § 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.
Page 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."
Page 581
