Albertsons Inc. v. Kirkingburg - Oral Argument

Argument of Corbett Gordon

Chief Justice Rehnquist: We'll hear argument next in No. 98-8... 591, Albertsons, Inc. v. Hallie Kirkingburg.

Ms. Gordon.

Mr. Gordon: Mr. Chief Justice, and may it please the Court:

Our case addresses both the issue of disability and the issue of qualification.

A functional analysis is required by a plain reading of the statute and under this Court's decision in Bragdon.

Defining the impairment, simply naming the condition, here monocularity, does not end that analysis.

A functional analysis establishes whether the impairment substantially limits the major life activity.

The Ninth Circuit held that Mr. Kirkingburg is disabled because he sees differently from other people, not because he sees substantially... in a substantially restricted or a substantially limited manner.

Mr. Kirkingburg sees with one eye almost everything that an average person in the general population sees with two eyes.

He lacks peripheral vision and he lacks some cues for depth perception.

Here Mr. Kirkingburg claims that his own mind has compensated and helped him in terms of depth perception, by giving him an enhanced ability to use monocular cues.

Viewing Mr. Kirkingburg's seeing functionally then, he's not substantially limited in the major life activity of seeing.

He is impaired because he sees differently.

Justice O'Connor: Let... let me talk about what we have before us here for just a minute.

I think your client asked for summary judgment at the trial court level.

Mr. Gordon: That's correct, Justice O'Connor.

Justice O'Connor: And only on the grounds that the respondent was not qualified for driving?

Mr. Gordon: That's correct.

Justice O'Connor: And did not ask for summary judgment on the issue of whether the respondent was disabled.

Mr. Gordon: That's correct.

Justice O'Connor: And yet, on cert, we are to address whether he was disabled.

Mr. Gordon: That's I believe appropriately before this Court because the Ninth Circuit ruled on that question and found him to be disabled.

Justice Breyer: How could the Ninth Circuit have... Ninth Circuit grants a summary judgment to the other side or to... grants... says that the other side should get summary judgment when they didn't ask for it and you didn't ask for it?

Mr. Gordon: That's correct.

Justice Breyer: Well, then isn't the obvious thing to do, we say they're wrong on that and just send it back and try it out?

Mr. Gordon: I think the Ninth Circuit is certainly wrong on that question, and this Court has before it other issues that came up on cert....

Justice Ginsburg: The Ninth Circuit remanded.

It didn't... it didn't throw it out.

The Ninth Circuit said...

Mr. Gordon: The Ninth... I'm sorry, Justice Ginsburg.

Justice Ginsburg: go back and... and do something more on the qualified issue.

You... you went for summary judgment.

You skipped over disability.

You skipped over the perceived as or...

Regarded as.

regarded as.

You went directly to the third thing that the plaintiff has to show and said, he can't show it but he's qualified.

Right?

Mr. Gordon: That's... that's correct, and the Ninth Circuit remanded on regarded as and on the qualification issue...

Justice O'Connor: Right.

Mr. Gordon: and found against the company and in favor of Mr. Kirkingburg on his disability question.

Justice Ginsburg: That... that's the only one that was a judgment, not... not a question open for the district court.

It was only...

Mr. Gordon: That's correct.

Justice Ginsburg: And the... so, if we were to say the Ninth Circuit was wrong on that, then everything else should go back.

If we said the Ninth Circuit was wrong in saying disabled means does it differently, if we just said that... that, why... why is your... are you entitled to anything more than that?

Mr. Gordon: Well, I think we're entitled to more than that, Justice Ginsburg, because the qualification standard is the standard that was tried to the district court.

The district court gave summary judgment on that.

It can be decided as a matter of law.

It was brought before this Court on a petition, and we believe this Court can go ahead and decide that as well.

And the... and the fact in this case is that this employer had a qualification standard, which the statute allows it to have, that was based in safety and it was applied to everyone, but you had to have 20/40 vision in each eye independently in order to drive a truck for the company.

That standard is the same standard that the Department of Transportation, the DOT, has in its regulations for truck drivers.

There's nothing arbitrary or capricious about that standard.

Chief Justice Rehnquist: But... but the Ninth... the Ninth Circuit, Ms. Gordon, said that the DOT provided waivers under certain circumstances and the respondent got a waiver?

Mr. Gordon: Yes, Mr. Chief Justice.

The respondent later got a waiver.

At the time that he was let go by the company, he didn't have a waiver.

And the waiver is only a license to drive in an experimental program that went into effect that... earlier that year to try to develop empirical data by which the Federal Highway Association was trying to see if it had enough evidence to lower the 20/40 each eye standard.

It never got that evidence.

It never developed that, and the standard has never been lowered.

Chief Justice Rehnquist: And... so... and did the waiver expire or...

Mr. Gordon: The waiver has been grandfathered in for people that got it during that period of time who kept up their reporting procedures, and the record ends, of course, at the point when discovery closed.

So, it...

Justice O'Connor: But we take this case on the basis that the respondent did obtain a waiver from DOT and a valid waiver at the time.

Right?

Mr. Gordon: Well, if... this case was taken on the petition for certiorari which questions the waiver as a reasonable accommodation.

I don't agree, respectfully, Justice O'Connor, that you can say that this waiver was valid at the time.

That validity would imply, as the Ninth Circuit majority said, that this person was deemed to be safe in some way when, in fact, that's not what the waiver program did.

It simply gave people with diminished visual abilities an opportunity to help the Government prove whether they were safe or not.

And in 1994 in the Advocates case, the D.C. Circuit found that that waiver program was invalid.

Justice Kennedy: Do you acknowledge at... at the time the employee obtained the waiver, Albertsons could have hired him to drive a truck if it had chosen to do so, relying on the waiver?

Mr. Gordon: I agree that the waiver gave him a license to drive recognized by the Federal Government.

Justice Souter: Is it your position that Albertsons has a right to set a safety standard, in effect, with the same unreviewable autonomy that the regs give a... a manufacturer the right to set production standards?

Is... is that basically your point?

Mr. Gordon: I think that is... that is the position under the statute itself.

A qualification standard may be set by the employer, and the EEOC has applied that both to safety type standards, such as this one, and production type standards.

Justice Souter: But you don't... you don't concede that there is, in effect, any reasonableness limitation on the standards that you can set?

Mr. Gordon: I think the reasonableness limitations are twofold on the face of the statute.

The standard must be job-related and consistent with business necessity, and the second test is whether it meets the direct threat test if it's a safety issue.

The standard in this case meets both of those tests.

Justice Breyer: But doesn't this just mean there's another issue for trial?

I mean, if... if there were no waiver, your... your client could say, well, I just relied on the DOT and the DOT says they're not safe.

And... but if there's a waiver, what the waiver means is DOT isn't saying, given the nature of this program, they are safe.

DOT is saying we're not sure.

Mr. Gordon: I think...

Justice Breyer: So, if DOT says you're not sure, then your client thinks they're not safe, the other side thinks they are... their client is safe, and... and therefore, we have a proceeding in a court and work out who's right.

I mean, would that be the answer to this?

Mr. Gordon: Possibly that would be the answer, but I would suggest that the EEOC itself has given another defense, and that is in the Technical Assistance Manual at page 4-16, they say that if you have a Government regulation that requires an employer to have a certain standard, if the employer is following that standard, which this employer was doing at that time and continues to do, that that operates as a defense and you don't have to look at the business... the job-related and business necessity test.

Justice Breyer: But is that... have they taken into account the very unusual situation where there is such a reg, but then the agency itself gets a subgroup of people and says, we don't really know whether it should or should not apply here?

Mr. Gordon: Yes.

I...

Justice Breyer: I mean, I would imagine the EEOC reg is silent on that point.

Mr. Gordon: There are a lot of regulations on the ADA that the EEOC has promulgated, but I haven't found that example...

Justice Breyer: Exactly.

So then, don't we have to have the trial or the further proceeding?

Mr. Gordon: I don't think so because I think you can find, as a matter of law, that when safety is an issue and an agency has issued a mandatory safety requirement... and again, the waiver program was not deemed safe.

When you're following a mandatory safety requirement, I think the employer is... is entitled to an absolute defense.

If this employer is found not to be entitled to an absolute defense, however, it can easily meet both the job-related and business necessity test and the direct threat test.

Justice Kennedy: Ms....

Justice Ginsburg: Well, unless unqualified can be determined as a matter of law, this case would have to go back.

In other words, unless we could say, you're right.

This person is unqualified as a matter of law because we ignore the waiver bit.

We take as mandatory those fixed requirements, and... and we don't take that position.

And then you can prevail as a matter of summary judgment.

Mr. Gordon: Certainly this Court can take care of this case as a matter of law if you go with the mandatory defense.

If you go to the balancing tests basically that are developed under the... the direct threat test, for instance, the record before this Court...

Justice Scalia: That wasn't the question.

Mr. Gordon: I'm sorry.

Justice Scalia: Whether we can decide it as a matter of law.

The question was if we don't... if we don't, then it has to go back.

Mr. Gordon: That's correct.

Justice Scalia: Can I ask another thing about... about the status of... of this case?

In... in your questions presented in your petition, you... you only ask whether a monocular individual is disabled per se.

You did not... you did not include a question about the regarded as claim.

And resolving that in your favor would do you no good since the... the court of appeals also found that this individual was regarded as disabled.

Now, I note that in your petition, you... you expand on question number 1, and...

In the brief.

In the brief.

Justice Kennedy: I'm sorry.

Justice Scalia: In the brief, you expand on question number 1 so that it includes not only disabled per se, but also whether he's regarded as... as disabled.

But it seems to me that comes in a bit late.

Mr. Gordon: Our position on that is that it's reasonably included in the first question presented.

Justice Ginsburg: In disabled per se?

Mr. Gordon: Disabled per se.

The definition of disabled has three prongs.

Justice Scalia: Yes, but what... what do the words per se mean?

Mr. Gordon: As a matter of law.

Justice Scalia: What do they add to the sentence whether a monocular individual is disabled under the Americans with Disabilities Act?

Mr. Gordon: That's a direct...

Justice Scalia: Just sort of thrown in there for no reason at all.

Mr. Gordon: No.

They were thrown in there because of the Ninth Circuit's majority opinion and the manner in which it was decided.

Justice Scalia: But doesn't per se mean disabled, not regarded as disabled, but disabled?

That's... that's how I took it.

But you... you say... but you... you agree that it's no use resolving just that first question unless the second one is also before us.

We have to find in your favor on both of those questions to go any further.

Mr. Gordon: Actually...

Justice Scalia: On... on that issue I mean.

Of course, the... you know, the qualified question would still be here.

Mr. Gordon: That's exactly right.

We would have to show both prong one and prong three.

Justice Scalia: But it's... it's no use deciding in... in your petition... to take the questions in your petition, it's no use deciding 1a in your favor unless we're also prepared to decide 1b in your favor.

Right?

Justice Souter: Well, I suppose you could say every little bit helps.

Unidentified Justice: [Laughter]

Mr. Gordon: You could say every little bit helps, and...

Justice Breyer: Of the brief.

Justice Scalia: The brief.

The brief.

Justice Stevens: I'm sorry.

Mr. Gordon: The qualified portion of our defense certainly would take care of either one of those first two questions.

Justice Breyer: Is... is it right, if I... just to understand it, the term disability in the statute is defined in terms of three prongs.

So, you are disabled if A or B or C.

Mr. Gordon: That's correct.

Justice Breyer: And so, what your question raised is whether the Ninth Circuit is correct in saying that your client... that their client was disabled under either A or C.

Mr. Gordon: That's right.

Justice Breyer: So, you say you raised it and weren't particularly specific as to which prong you were pointing to in the question.

Mr. Gordon: That's right.

We perhaps didn't state it as artfully as we could have in our petition, and we clarified it...

Justice Breyer: Did the Ninth Circuit use per se in reference to one prong but not the other?

Mr. Gordon: The Ninth Circuit made a per se decision in terms of prong one.

The manner in which they analyzed it was a per se analysis, and that's...

Chief Justice Rehnquist: Well, per se is a rather... you mean as a matter of law?

Mr. Gordon: Yes.

They basically said... they defined Mr. Kirkingburg as monocular.

They relied on secondary sources, and then they said people with... people who see out of one eye rather than two are substantially limited because they see differently.

So, I think they made a, what I consider, per se or matter of law ruling on a monocular individual without doing the functional analysis on this individual and what this individual is able or unable to do.

How can we find someone is not disabled who sees with only one eye and then turn around and say that that same person is not qualified to drive a truck for a company?

The way we reach that analysis is this.

Mr. Kirkingburg sees almost everything that other people see.

The very things that he's lacking are the elements that are so important in driving a truck for the company.

It's the peripheral vision and it's the lack of some cues of depth perception that are particular to this job.

And that's how we get out of the, as it's sometimes been described, as a catch-22 situation of saying that this man is only impaired and yet impaired enough that he can't do this job.

There is no reasonable accommodation that will raise Mr. Kirkingburg's vision to the level that this company requires.

There is no ramp.

There is no wrist rest.

There's no type of reasonable accommodation as it is often thought of that will increase his vision in his left eye.

Justice Scalia: Why isn't the company regarding him as disabled?

Mr. Gordon: The company isn't regarding him as disabled for two reasons.

First, they offered him other employment.

They didn't view him as unemployable.

They viewed him as unqualified for this particular job in the manner I've just described in employing the qualification standard.

Also...

Justice Ginsburg: What was the pay differential on the job that they did... that they did say he could have?

Mr. Gordon: They offered him the tire mechanic job and the pay differential was a little more than a dollar an hour.

And you find that in the joint appendix at page 396.

The driver's salary was $14.21 per hour.

The tire mechanic's salary, $13.05 per hour.

Justice Souter: That was driver in terms of the driver in the yard as opposed to the driver on the highway?

Mr. Gordon: That's any driver.

Justice Souter: Any driver?

Mr. Gordon: Yes.

The company's rule is the same for any driver.

Okay.

So, there is no reasonable accommodation that will raise this man's vision with or without correction to the level that the company requires.

Both the Motor Carrier Safety Act and the Americans with Disabilities Act have recognized that an employer has the right to set a qualification standard, and the EEOC has expressly allowed an employer to follow a standard that's required by law.

Justice Scalia: Don't you think truck driver is one category of... I just don't... I just don't know how to... how to do the regarded as thing.

You say it's... it's... he's... you think he would have been regarded as disabled if he could function neither as a truck driver nor as a... what is it... tire... tire mechanic?

Mr. Gordon: Tire mechanic?

Justice Kennedy: That...

Mr. Gordon: I think it would be a tougher...

Justice Scalia: What's the criterion?

The company would have had to not employ him?

What if the company offered him a job sweeping... sweeping the... the garage floors at night after... after the day's work is done?

Would that be enough to prove that they don't regard him as disabled?

So long as they offer him some job, they're not regarding him as disabled?

Mr. Gordon: I'm not sure that that isn't correct, Justice Scalia.

And the reason for that is the way the test is set up, that if they don't perceive him as substantially limited in the major life activities certainly that have been raised in this case, working or seeing, then they necessarily aren't perceiving him as disabled.

Justice Souter: No, but the category can't be as broad as working, can it?

Mr. Gordon: Well, there are subcategories within working.

I would submit that they're not as narrow as driving a truck for this one company.

Justice Scalia: Yes.

I don't know how to figure those subcategories.

I honestly don't.

How do we decide how broad or narrow?

I mean, it's crucial to applying the regarded as section, and how do you decide how broad or how narrow the category is?

Mr. Gordon: I would suggest that with reference to driving as a subcategory of the major life activity of working, that it may be helpful to look at all driving, someone who can't do leisure driving, someone who can't drive at all, so would be completely unemployable in any category of driving.

In this case, this particular man had a steady history of employment, including driving, up to the time that he came to this company and after he left.

Justice Kennedy: Under the Longshore and Harbor Workers' Compensation Act, determinations are made as to what work is available in the economy for the particular individual.

Is... is that analysis suited to the ADA?

Mr. Gordon: The...

Justice Kennedy: It doesn't seem to me to quite fit with its language.

Mr. Gordon: The EEOC would suggest I think that that is too broad if you look at the entire national economy, and I can't say that I would disagree with that.

However, looking at a narrow category of jobs like truck driver that requires visual acuity of 20/40 in each eye, I think that is too narrow a category to say that this man is precluded from engaging in the major life activity of working.

Justice Souter: Well, how are we supposed to work it out?

I mean, should it... should we... should we derive... this Court start deriving legal categories?

Should the EEOC do it?

Should juries do it?

I mean, working is... is too broad.

Truck driving in this yard is too narrow, but who is going to set the... the median?

Mr. Gordon: Well, the median seems to... as it percolates up through the courts in regards to driving and in regard to working as a major life activity, most of the courts that have examined it are looking at it more broadly than simply saying driving in one job category.

Justice Souter: Are they doing it as a matter of law or are they... are they doing it as a matter of reviewing reasonable jury discretion?

Mr. Gordon: They're doing it as a matter of law.

Justice O'Connor: Well, the EEOC has, at least, offered an interpretive guideline I assume or a regulation on the subject.

Mr. Gordon: Yes.

Justice O'Connor: And it says, the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

But then what do you do?

The plaintiff says, well, I'm not talking about that.

I'm talking about seeing.

Mr. Gordon: My answer to seeing, Justice O'Connor, is that I think this record is clear that this employer didn't perceive this individual as unable to see or substantially restricted in seeing because the other jobs offered him required someone can see.

Justice O'Connor: But you do say that this was a single, particular job.

Mr. Gordon: I do say that the job of truck driver for this company is a single, particular job, and there are lots of other kinds, van driving...

Justice O'Connor: And therefore, you don't get to the is he qualified question, in effect.

Mr. Gordon: You don't get... you don't get to the is he qualified question if he's found not to be disabled and not to be perceived as disabled.

That's correct.

The analysis would end there.

Justice Scalia: Of course, all of these cases involve a single, particular job.

In... in that... you know, in that respect, it's always a particular job that he's been turned down for.

But the question is, for purposes of the regarded as, do we say that single, particular job is representative of all truck driving jobs or all... I don't know.

I really don't know how... how to figure it out.

Mr. Gordon: Well, clearly in this case, this employer perceived him as able to work in other positions for this employer, so it didn't perceive him...

Justice Scalia: And you'd say that's the criterion, so long as that employer will give him another job.

It doesn't matter what job.

Mr. Gordon: Well, that's one of the criteria.

Justice Kennedy: Wow.

Mr. Gordon: And another is to look at whether this person is employable in that geographic area, which is one of the things the EEOC directs us to look at.

Justice Scalia: Is it... is it the same for every individual, or is... does the individual at issue somehow determine how broad you define the category?

I mean, suppose a surgeon has spent his entire life studying and... and learning to... to perform one little operation and he has a disability that now makes it impossible for him to perform that operation, or is regarded as not being able to perform that single operation...

Mr. Gordon: But...

Justice Scalia: even though he can do a lot of other surgery.

But the man's whole career has been based on this thing.

Mr. Gordon: Well, the guidelines...

Justice Scalia: The left nostril from... from the time he went to medical school.

Unidentified Justice: [Laughter]

Mr. Gordon: The guidelines would say that we look at his training, his skills, his other background and talents, and I... I would suggest that in that case, that doctor could learn to operate on other close body parts.

Justice Scalia: But you acknowledge that the regarded as decision requires you to look at the individual, not... it's not the same test for everybody.

I couldn't say for everybody trucking is the proper category... truck driving is the proper category.

It may be the proper category for some.

It may not be for others.

Is that... is that right?

Mr. Gordon: I think the correct analysis is to look at the mental status of the employer and whether... and what the perception of the employer was when you're looking at the regarded as prong.

That's where the focus should be.

Justice Souter: It's a purely subjective test.

Mr. Gordon: A subjective test based on the evidence in the record as to what that employer was doing or thinking, yes.

Justice Souter: What do you make of the regs that... that speak of... of regarding in terms of treating, i.e., it seems to be a functional objective test?

Isn't... isn't your... isn't your answer inconsistent with the EEOC's regs on the subject?

Mr. Gordon: Well, not... I don't believe entirely because how you treat someone is indicative of how you're thinking about the person.

Justice Souter: It is but you may also... I mean, you may also apply a treatment test as a purely functional objective test.

Mr. Gordon: They treated him as if he were substantially limited in a major life activity.

Justice Scalia: Yes, that's the...

Mr. Gordon: Therefore...

Justice Souter: It's... you know, it's a bottom line kind of test rather than an intent test.

Mr. Gordon: I think it has to come back to intent because the... because of the use of the word regarded in the statute.

Justice Ginsburg: Well, why mustn't it then go back to the district court?

Because it seems to me somebody could extract or a juror could find, based on the statements, he's legally blind.

He's blind in one eye.

And somebody could say, what did you mean by that?

Did you mean you regarded him as disabled?

The answer might be yes.

One can't say on this record that that's not so, that we... that this is a man who's... who is perceived as disabled, that in the mind of the representative of the employer, legally blind, blind in one eye equates to disabled, if it's a subjective test.

Mr. Gordon: On the facts in this record, that statement was made after the decision was made to terminate Mr. Kirkingburg's employment, and so the statement itself is not causally linked to the... to the decision of the act that's now claimed to be discriminatory.

Justice Ginsburg: But can't it explain why the decision was made?

The decision was made because, of course, he's got only one eye he can see out of.

He's disabled.

Mr. Gordon: I think the... the statement is better understood as simply defining the... the impairment that this individual has.

He is legally blind in one eye.

Justice Souter: What does it mean to be legally blind in one eye?

Mr. Gordon: The... the test for the difference between an impairment up to some level and then above it is 20/200.

Chief Justice Rehnquist: Well, but who says the person is legally blind?

I mean, that... that suggests there's some law been passed that says people who have less than 20/100 vision are... are blind.

Justice Souter: Is that so?

Mr. Gordon: I haven't found it articulated and I...

Chief Justice Rehnquist: Then why do you use the term legally... or perhaps why does your employer... why does your client use the term legally blind?

Mr. Gordon: In various materials, that is the term that's applied.

Chief Justice Rehnquist: Well, what materials?

Mr. Gordon: Secondary studies.

I can't point you to one now, but it's not something that arose for the first time in this case.

It's a term that has been generally used to depict someone who... as a level of... if you're uncorrected at that level.

Justice Breyer: You can't...

Chief Justice Rehnquist: Well, but that's... that's a very circular explanation.

It's a term that's been used to denote someone who's legally blind.

Unidentified Justice: [Laughter]

Mr. Gordon: I... I agree it is.

Justice Breyer: So, is it driving statutes or benefit statutes?

Mr. Gordon: I think it may be the benefits and the tax statutes, but I... I can't cite you to one particularly at this time.

Thank you.

Chief Justice Rehnquist: You wish to reserve your time, Ms. Gordon?

Mr. Gordon: Yes, thank you.

Argument of Scott N. Hunt

Chief Justice Rehnquist: Mr. Hunt.

Mr. Hunt: Mr. Chief Justice, and may it please the Court:

Hallie Kirkingburg can drive a commercial motor vehicle safely in interstate commerce.

He did it for 11 years before he was hired by Albertsons.

When Albertsons tested him at the time of hiring, they gave him an 18-mile road test and certified he could drive safely.

During the 16 months that Mr. Kirkingburg drove for Albertsons, his supervisors judged him to be a good, safe driver.

It was only after Mr. Kirkingburg's vision condition became known to Albertsons, through his need for a vision waiver, that Albertsons asserted he posed a safety risk.

Mr. Kirkingburg is able to drive safely despite his amblyopia and strabismus, his outward...

Justice Stevens: Let me ask this.

If you put aside all... the waiver issue for just a moment, would you not agree that even though he passed all those tests, if he did not comply with a Federal standard, they would be justified in terminating him?

Mr. Hunt: Putting aside the waiver program, yes.

Justice Kennedy: Yes.

Justice Stevens: And then if the waiver program is not necessarily binding on every... every driver who doesn't qualify because it ultimately was set aside, why does the waiver program change the situation?

Mr. Hunt: Well, to begin with, it wasn't ultimately set aside.

The Advocates court did set it aside... find it to be invalid, but it was then, when remanded to the agency, reinserted in that all the waivers were grandfathered in.

They were revalidated.

And in fact, since then the program has continued and waivers have continued to be granted.

In fact, the Eighth Circuit in Rauenhorst required the agency to consider granting that plaintiff an individual waiver despite the fact that the program's cutoff time for application had expired.

Justice Breyer: So... so, it did.

When he went to the... did your client go to his employer?

His employer says, I don't want you to work here anymore.

And did your client then say, but I have a waiver?

Mr. Hunt: The way it occurred was when he came back from an extended period of time off, he did not pass the DOT certification exam, was informed by the examining doctor that he needed to obtain a waiver.

He then went to the employer to obtain that waiver a day or 2 later.

The employer refused to accept the waiver, and 2 weeks later terminated him.

Justice Breyer: Who had given him the waiver?

The employer or DOT?

Mr. Hunt: DOT, through the Federal Highway Administration.

Justice Breyer: So, he went to the employer.

He said, here, I have a waiver, and then he... the employer said, I don't care, and terminated him.

That's your statement of the facts.

Mr. Hunt: No.

He went to the employer and said, I need a waiver, and the employer said, we will not accept a waiver.

You must meet the minimum standards, and terminated him.

Justice Kennedy: But then did he ultimately get a waiver?

Mr. Hunt: Yes, he did.

Justice Kennedy: All right.

Suppose the waiver program were in effect, and suppose Albertsons accepted him as a driver under the waiver program.

There's then an accident.

A little child runs out the curb and the allegation is his peripheral vision was such that he didn't see the child and he should have.

Can Albertsons defend a negligence action for negligent hiring of the monocular driver based on the DOT waiver program?

Is that an absolute defense?

Mr. Hunt: I'm not... I'm not certain that it would be an absolute defense.

It certainly would be a defense they could present.

And yes, I believe it should be a defense.

Justice Kennedy: Well, this... would this be a legitimate concern of the company, tort liability for hiring a driver who may or may not be safe, was in a category at least where the DOT was going to experiment with him for a while?

Mr. Hunt: Well, I don't think the may or may not be safe is sufficient.

Under the regulations, it needs to be a significant risk.

It needs to be an immediate risk.

Justice Kennedy: Well, the tort plaintiff in the hypothetical case would... would allege that Albertsons was guilty of negligence in hiring somebody that had... had less than adequate vision because of the peripheral limitation.

Mr. Hunt: And... and I think the employer could defend on the grounds that the... the agency in charge of determining safety standards had determined that the individual who received the waiver, through an individual assessment, was safe to drive.

Justice Kennedy: But could the employer defend the employment action?

Could the employer defend under the ADA by saying, I don't want to have to put this question to the jury?

Mr. Hunt: No.

Justice Kennedy: I don't... we don't want to hire the driver and take the chance of having to defend him in... in court.

Mr. Hunt: I believe that that needs to be... when they are asserting that sort of safety threat defense under the ADA, under the statutory language, they must... and under the terms... this Court's ruling last term, they need to rely on objective evidence, objective scientific evidence to justify that safety risk.

Justice Souter: Well, what if they've got objective scientific evidence that shows just what Justice Kennedy's hypothetical assumed, and that is that, in fact, there is a... a lack of a certain percentage of peripheral vision?

Is... is that enough?

Can the company then say, all right, our judgment is that that risk posed by the... the deficient peripheral vision, in relation to the consequences, if someone driving one of these huge trucks has an accident, justifies our imposition as a safety standard or as a job qualification a... a vision standard that would exclude this person?

There's an objective basis, i.e., peripheral vision.

There's also a judgment about what is an acceptable risk.

Is the company free to make that judgment?

I... I don't mean absolutely free, but would that be a reasonable judgment for the company to make and... and permitted under the statute?

Mr. Hunt: I believe in that case it would... they would meet the necessity of supplying objective evidence to justify their direct threat defense.

That's not what happened in this case.

There's no evidence in this case that they justified it by anything other than safety concerns, generalized safety concerns.

Justice Souter: So, their... their failure in your view was simply that they... they were too blunt about going about what they... they were doing.

And if... if this goes back for trial and the company does something along the lines I've described, that would be sufficient to pass muster under the statute.

Mr. Hunt: Well, I think the company would have to provide evidence that they had considered that objective evidence that Your Honor refers to at the time that it refused to accept the waiver.

It would not be sufficient to after the fact say, well, now that we're in litigation, we've examined these various studies, and we have found four out of the dozen or so that we've looked at, and those support our position that we took several years ago.

Justice Souter: You mean if... if new objective evidence were discovered as a result of independent scientific inquiry between the beginning of the action and the time they put in the defense, they could not put in the defense?

Mr. Hunt: If... if new... if it's additional information, I believe they could.

If the record is that, as it appears to be in this case, that there was no consideration of objective scientific evidence, then I don't think they could now find after the fact, oh, there is scientific evidence.

If they did have objective evidence that they relied upon at the time of refusing the waiver, then I believe your... your hypothetical would be appropriate and they could add it.

Justice Souter: Why is... why is your answer what it is?

Why couldn't they do it if they... in the case in which they... they could have known about this evidence, but that's not what they relied on at the time?

Why are they precluded from bringing that up as a defense?

Why?

Mr. Hunt: I believe it would come under the... the sense of after-acquired evidence, that sort of analogy, that you can't rely upon...

Justice Souter: Well, is there anything in the statute?

Mr. Hunt: I can't think of anything in the statute that would prevent them from adding that evidence.

Justice Scalia: Mr. Gordon, you...

Mr. Hunt: It's Mr....

Justice Scalia: Hunt.

Justice Stevens: would agree I take it that this... I'm sorry.

Justice Scalia: Mr. Hunt.

You agree that this statute is not meant to protect everybody from unreasonable employment decisions.

It's only meant to protect the disabled.

Mr. Hunt: Correct.

Justice Scalia: I... I worry about... about the... the proposition that the regarded as provision can eat the statute, can essentially transform it into a statute that outlaws all unreasonable employment decisions.

Can you give me an example of a case in which an employer makes an unreasonable qualification for the job which is found not to be a justifiable qualification for the job on the basis of some physical characteristic, height, vision, whatever, in which that unreasonable qualification would not be the basis for a regarded as disabled claim?

Mr. Hunt: To be honest with you, I have trouble following all the details of that question... of that hypothetical.

Justice Scalia: I am worried about the fact that whenever an employer establishes a physical characteristic for the job, which turns out to be an unreasonable one and therefore would not qualify for the... for the bona fide qualification defense under this statute, whenever that's the case... it's an unreasonable qualification... the person turned down for employment would be able to say, you used a physical characteristic that was not proper, and therefore, you were regarding me as disabled, and therefore, you are liable to me.

In other words, I'm... I'm worried that this is transforming the statute into a statute that says everybody in the country is protected from unreasonable employment decisions based on physical characteristics.

I would like to give... you to give me a case in which under your theory of the... of the regarded as clause, there is an unreasonable physical characteristic qualification imposed by the employer, one that would not satisfy the defense which, nonetheless, will not qualify as the employer's regarding the individual as disabled.

I can't explain it any clearer than that.

It's a very complex thought.

Unidentified Justice: [Laughter]

Mr. Hunt: I... I believe this case presents that... that situation where they regard him as legally blind even though he's not legally blind.

It's not appropriate... it's not reasonable for them to make that assumption.

Justice Scalia: Is there any case where that... where it wouldn't work out that way?

Is there any case where an employer makes, in good faith perhaps, a qualification for his job that is a physical characteristic in which the employee will not be able to say by establishing a physical characteristic, you have regarded me as disabled.

And therefore, it's your burden to show that this is a necessary qualification.

Justice O'Connor: Well, how about Hooters Restaurant and it says, we only hire women with size 40 or more bras?

I mean, is that one that...

Mr. Hunt: I... I...

Justice O'Connor: on regarded as?

Mr. Hunt: I think the... I think the... excuse me, Your Honor.

The... I'm having trouble thinking of an example...

Justice Scalia: Well, the Ted Williams example would be...

Justice Kennedy: I would like quickly to return to this case.

In... in this case, let's assume... everybody admits he's blind in one eye.

Some people say legally blind.

Let's assume that in asking whether he's disabled, we find that he is... is not prevented... substantially limited in a major life activity.

The regarded prong doesn't take you any further, does it?

If you make that assumption.

But let's assume he's... he's not disabled under the act.

Then in this case, since everybody knows that he was blind in the one eye, and that that's what... the regarded prong doesn't take you any further, does it?

Mr. Hunt: I believe it does because in addition to the blind in one eye perception, there is the legally blind perception.

And the legally blind perception, under Rehabilitation Act precedent, would be substantially limiting.

In other words...

Justice Kennedy: But... but if... but if he's not under... prevented from a... limited in a substantial life activity.

Mr. Hunt: He would still have to be.

I mean, rather, he'd have to be...

Justice Kennedy: Then... then I don't see how the regarded prong helps you.

This is in part in answer to Justice Scalia's concern.

And I think this is a case where that issue comes up, and... and where you are not helped by the regarded as prong.

Mr. Hunt: Well, I think...

Justice Kennedy: You tell me if I'm... I'm wrong, please.

Mr. Hunt: Well, I think legally blind, although there is a question as to what exactly legally blind means, but I think the perception of someone being legally blind and then treating that person by... by eliminating their employment, by terminating them completely from employment is a substantial limitation.

They... they still have to... the way they treat them has to be substantially limiting.

The way they perceive them... the impairment to impact them has to be substantially limiting.

Justice Kennedy: Well, then, why don't you qualify under the basic definition of disability?

Why do you need the regarded as prong?

Mr. Hunt: There's... there's a potential difference in monocular vision versus legally blind.

Monocular vision is the one eye issue.

The statement that the Ninth Circuit relied upon that we offer as evidence that he's perceived to be disabled includes a reference to legally blind which is not reference to one eye.

So... so, if the Court were to find that monocular vision is not an actual disability, the regarded as would still provide a means to find that he was disabled.

Justice Breyer: Is... is... can I go for one second to the other part of the case, which is the... the question of this test?

Will you assume, for the sake of argument, that an employer, who comes in and points to a DOT reg saying this kind of person is not safe, wins whether that reg is justified or not justified.

It can't be gone into in a million different cases.

If you don't like it, go to DOT and get it changed.

Assume that for the sake of argument.

Mr. Hunt: Yes.

Justice Kennedy: All right.

Justice Breyer: Assuming that, I take it that the argument that there is no need for a further proceeding on this is there was such a reg, and in fact, the waiver program was an effort to see if it should be changed.

So, the employer says, fine, if they decide the answer to that question is change it, I'll change my position.

If they decide the answer to that question is don't change it, I was right all the time.

But I don't have to do anything as long as the reg is in place whether they have an experimental program to decide whether to change it or not to change it.

Now, what's your response to that?

Mr. Hunt: First of all, it's not an experimental... the waiver program is not experimental as to the safety of the individuals who are assessed by the Federal Highway Administration and granted a vision waiver.

It's experimental only in that it is hoping to gather statistical evidence from which it can then adjust the standard minimum requirements.

So, there's no... there's no... the basis for the... Albertsons to say, well, we can rely on these basic minimum requirements when the agency itself has said, no, to comply with the ADA, as we've been instructed to do by Congress, we have determined that this set of individuals who meet these specific criteria are safe to drive, that in that situation, the employer cannot simply rely on the standard minimum requirements as its justification for a safety concern.

Justice Scalia: Well, then the experimental program becomes... becomes a mandatory program.

Any employer who doesn't want to get sued has to apply for a waiver.

And all of a sudden what was meant to become an... was meant to be an experiment becomes... becomes the standard.

Mr. Hunt: Again, it was not meant to be an experiment as to the... allowing those particular drivers to drive.

Justice Scalia: I know, but it was meant not to apply to all drivers.

It was meant to be a small segment of drivers, but you're telling me that any employer with a brain in his head ought to... ought to apply to... to get a waiver.

And that means that everybody would... would be in the experimental program.

Mr. Hunt: No, and...

Justice Scalia: Maybe we should have an experimental program for people who don't get waivers.

Justice Ginsburg: There were very tight standards for who... who can be in the program.

Didn't they have to have a very good safety record a certain number of years?

Mr. Hunt: Indeed, the standards, Justice Ginsburg, to get into the program were stricter than it was to drive in general.

Justice Ginsburg: So, a lot of people who drive a lot and get a ticket every now and then wouldn't qualify for it.

Mr. Hunt: There was a requirement of 3 years of safe driving with no suspensions, no-revocations, no disqualifying traffic violations.

So, the people... it's not for anybody who can receive a waiver.

It's only for people that established that they're safe drivers through an individual assessment conducted by the Federal Highway Administration.

Justice Ginsburg: Mr. Hunt, before you finish, with all that's unclear about this case, there's one I think that we could at least focus on and say it's wrong or right.

It's the Ninth Circuit's you do it differently, so you're disabled.

You do it differently from a person who has two eyes, even if you do it as well, if you do it differently.

Are you supporting that position?

Mr. Hunt: I think the... I think that statement by the Ninth Circuit needs to be read in context of the entire paragraph.

The Ninth Circuit finds that Mr. Kirkingburg's sight, his seeing is restricted due to the loss of peripheral vision and due to the change and impact on depth perception.

If you read... and then it cites to the EEOC regulations regarding how... regarding substantial limitation and the fact that it's a difference in manner, condition, or duration.

And if you... if you combine all of that in context, the seeing differently statement is too broad, but in context I believe means that you still have to be substantially limited in the... in a major life activity, as the court found.

Thank you.

Justice Souter: Thank you, Mr. Hunt.

Argument of Edward C. DuMont

Chief Justice Rehnquist: Mr. Dumont, we'll hear from you.

Justice O'Connor: Would you address the regarded as prong and offer some views on how in the world we're supposed to view the requirements under that and cabin it, if we are?

Mr. Dumont: Well, I would say that with respect to this case, Your Honor, the best way out of that problem for this case is to say that what happened here was that the employer clearly viewed respondent as substantially limited in the life activity of seeing.

The anomaly that is presented here is what they want to say is that this is a person who can see so well that he's not even disabled within the cognizance of the ADA, but so poorly that he can't drive a truck.

And that, with respect to the substantial life activity of seeing is, we think, a fundamentally logically inconsistent position.

Now, when you get into working...

Justice Scalia: Wait.

I... that doesn't seem so self-evident to me.

I mean, you could say the same thing about airlines.

He sees... sees so badly that, you know, that he's disabled, but... I'm sorry... doesn't see so badly that he's disabled, but does see so badly that he can't fly a plane.

Mr. Dumont: Well, and I think...

Justice Scalia: Why is that... what is there that's absurd about that?

I don't understand it.

Mr. Dumont: I think within some limits imposed by the word substantially, that's the right analysis; that if a company is going to take an employment action based on... based on... admittedly based on a physical limitation that goes to one of your major life activities... in this case it's seeing... then they are in a poor position to turn around and say that, nonetheless, your vision is so good that you are not even substantially limited enough to be within the coverage of the act.

Justice Scalia: It depends on how broad you think the category of disqualification has to be in order to render you substantially impaired.

I can certainly say, you know, this person doesn't see badly enough to be a... or this person's fingers aren't dexterous enough to be... to be disabled or he doesn't lack enough dexterity to be disabled, but he... but he, nonetheless, is disqualified from being a brain surgeon.

There's nothing inconsistent with that at all.

Mr. Dumont: I think you're...

Justice Scalia: It depends on how broad the category of the job is.

Mr. Dumont: With respect, I think you're focusing on jobs, and that's the wrong focus here.

What I'm suggesting is that if you focus on the life activity which here is seeing, not working, then I agree with you that the statute requires us to say is there a substantial limitation on seeing.

But both with respect to somebody who has 20/200 vision without her glasses and with respect to somebody who, because of a physical difference in the way his eye is constructed, in effect sees only out of one eye, we think that it's fairly clear that those people are... are substantially limited with respect to seeing.

And not only that, but if an employer adopts an employment standard which is based on precisely that physical characteristic, the inability to see better than this, what they are doing is to treat that person as substantially limited in his seeing.

Chief Justice Rehnquist: Are you... are you saying, Mr. Dumont, that as a matter of law, a person in Mr. Kirkingburg's position who sees only... is disabled?

Mr. Dumont: Not as a matter of law that he's disabled.

I would say that it comes close to being that when you have an employer who has a qualification standard that is based on a... a minimum vision requirement and takes action against an individual...

Chief Justice Rehnquist: But that doesn't come to the head of... that's the qualification, isn't it?

Or perhaps... but certainly not the determination of whether someone is disabled.

Mr. Dumont: I think the two are very closely related, and let me address that point this way.

Under the act, under the definition of discrimination in the act, it is discrimination to use a qualification test that has a disparate impact on a person with a disability, which in this case is certainly true about Mr. Kirkingburg if you believe that his limitation comes within the definition of disability.

Justice O'Connor: Except there's a defense if a Government agency requires a certain standard, as the DOT did here for vision for drivers.

Mr. Dumont: There's that defense...

Justice O'Connor: You have to get a license, and there's a defense if the person doesn't have that license.

Chief Justice Rehnquist: Isn't that right?

Mr. Dumont: Absolutely.

There is that defense and there is also the defense that, although you are in fact taking action on this characteristic, it's legitimately related to the job, it's... it's necessary for safety.

And you can win that way.

My point is that there is no reason to... and in fact, a good reason not to... interpret the definition of disability so narrowly that in these cases you stop the person from getting in the door to the court.

Because what you're going to do when you're through that door is have exactly the kind of a debate you ought to be having which is this requirement...

Justice Scalia: But this statute... this statute wasn't meant to apply to all Americans.

It was meant to allow lawsuits only by a discrete and insular category of people.

And to simply say letting everybody in the door is no problem because they're going to have to face these later hurdles, I mean, it may make sense, but it's not the way the act was written.

Could you answer the question that I asked before to Mr. Hunt?

Give me an example of a physical qualification for a particular job that is unreasonable which would not... which would, nonetheless, not allow the person who is denied the job on that basis to claim that, under your theory, he was regarded as disabled?

Mr. Dumont: Yes, absolutely.

Justice Scalia: Okay.

Good.

Mr. Dumont: Blue eyes.

Justice Scalia: Blue eyes.

Mr. Dumont: Blue eyes, which is not an impairment.

I think actually the example of the quarterback who's a little too short...

Justice Scalia: Blue eyes.

But I say people... I don't think people with blue eyes can drive trucks.

Okay?

Mr. Dumont: Right, which...

Justice Scalia: And, therefore, it's a... it's a job qualification and...

Mr. Dumont: That's right.

Justice Scalia: But you say under your theory, I would not be regarding you as disabled because you have blue eyes.

Mr. Dumont: Because it's not an impairment which the statute requires.

Here's another example of something that is an impairment.

Justice O'Connor: Well, wait, wait.

Justice Scalia: Why isn't it an impairment?

If... if the substantial life activity is driving trucks, I suppose it would be an impairment.

Mr. Dumont: No, because we look to the language of the statute and some language... some language is open to interpretation and, in fact, requires interpretation like substantially limit.

Some language is pretty precise like impairment.

And impairment implies some deviation from the norm, and I think it would be improper to call having blue eyes an impairment.

Here's another example.

Justice O'Connor: An occasional headache.

Mr. Dumont: Here's another example.

Suppose there's somebody who's missing the third toe from the left on his left foot, and in fact you can demonstrate... now, I don't know whether this is true, but in fact you can demonstrate that it has absolutely no effect on his ability to do anything.

Now, that person is impaired.

Justice Kennedy: is right.

Mr. Dumont: That person is impaired, but it would be unreasonable I think for any employer to base a job qualification on that...

Justice Breyer: Be a little more realistic.

What about a person who gets occasional headaches?

And he occasionally gets a headache, and the employer says, I don't want people who get any headaches.

We're... we're fit and healthy in this firm.

He's a health nut of some sort...

Unidentified Justice: [Laughter]

Justice Breyer: and doesn't want anybody with occasional headaches.

I'd say that's somewhat irrational.

Does he fit within the statute in your opinion?

Mr. Dumont: I think it's a... probably not because you have...

Justice Breyer: Here's the example.

By the way, is there a need to get into any of this here?

I don't understand.

It seemed as if at the beginning this... whether it's like an occasional headache or whether it's like some other more serious matter was a matter for trial or for further proceedings.

I've never heard of giving summary judgment or granting it when it wasn't asked for, and I guess it wasn't.

So, are we just debating this theoretically?

Mr. Dumont: I think we are and I think that's all we want is to go... all the respondent wants is to go back for trial here.

Now, I do think you can say that the Ninth Circuit may have spoken a little too broadly, exactly as my colleague said.

But I... I would actually not agree...

Justice Ginsburg: You say a little too broadly.

I mean, ruled as a matter of law different manner equals disabled.

Mr. Dumont: If it's different manner equals, but I wouldn't say it's entirely the wrong inquiry.

I mean, I think the regulatory inquiry... and that's where that comes from is the EEOC's regulations... the inquiry is perfectly valid.

To say that because a person who's right-handed performs the same task as someone who's left-handed in a different manner, that makes him disabled, I think that is... that might be within the Ninth Circuit's definition broadly read.

That would be improper.

But I think it is true to say that simply because somebody has what anyone would recognize as an impairment... I mean, suppose you started off with a... well, many people who lose an eye midway through life, for instance, will go through a transition period where they have very poor depth perception, very poor vision in the very beginning because they're adjusting, and then they'll get better and better as time goes by.

Now, I think it... it would be wrong to pretermit the inquiry into the fact that when they get to the end, they may see pretty much functionally the same way for some... for many purposes.

But it's wrong to pretermit an inquiry into whether the fact that they have to do it through a different purpose... through a different manner is... is substantially limiting.

Justice Kennedy: Suppose we say that under section (a) of the statute there is no substantial limitation on the life... life activity.

You lose... the employee loses under section (a).

Is the regarded... does the regarded section in section (c) help at all?

Mr. Dumont: I certainly think it is helpful to the extent that... I would say as I said before.

If... if the employer is in fact taking job-related action based on its perception of the fact that you need to have a certain kind of vision or certain other kind of physical qualification to meet a safety standard, then it's precisely the right inquiry whether that's true or not, whether you really need that qualification, that physical qualification, or not to do this job.

But that is an inquiry that you get to when you get into the guts of the statute under...

Justice Scalia: That... that has to help.

I mean, to say... to say that the regarded as qualified doesn't help once you're determined... regarded as disabled doesn't help once you've been determined not actually to be disabled is to say that it has no function at all.

It's whole function is to cover those cases where the individual is not in fact disabled, but is regarded as disabled.

So, it has to be somebody who does not really genuinely qualify and, therefore, perhaps is not one of the... the median group that you say.

Chief Justice Rehnquist: I think that's a criticism rather than a question, Mr. Dumont.

I think it is.

Unidentified Justice: [Laughter]

Justice Kennedy: Thank you, Mr. Dumont.

Mr. Dumont: Thank you, Your Honor.

Rebuttal of Corbett Gordon

Chief Justice Rehnquist: Ms. Gordon, you have 2 minutes remaining.

Mr. Gordon: Thank you, Mr. Chief Justice.

I just have two brief points I'd like to address responding to points made by Mr. Hunt.

First, he was talking about the waiver program as a proxy for safety, and I would like to call the Court's attention to some things in the Federal Register.

At 59 Federal Register 59388, the Federal Highway Administration recognized that its study was flawed and has admitted that some of the waiver drivers were sub-par performers who individually may represent an unacceptable risk to safety.

That Federal Register entry was in November of 1994 after Mr. Kirkingburg got his waiver.

Their own panel of doctors that advises the Federal Highway Administration and other studies and advisors over the years, as recently as October of last fall, have advised the Federal Highway Administration not to change the 20/40 each eye acuity standard.

In fact, that standard or a like standard has been in place since 1935, starting with good vision is important to safe driving.

Justice Stevens: But how can you reconcile that with the decision to allow all existing waivers to remain in effect?

Mr. Gordon: I can't.

Justice O'Connor: Oh, okay.

Mr. Gordon: I can't.

In the same breath, the Federal Highway Administration declared the current people in 1996 to be sufficiently safe to grandfather them, and... and I can't reconcile that.

Justice Scalia: Close enough for Government work.

Justice Kennedy: I think that's...

Unidentified Justice: [Laughter]

Mr. Gordon: I would refer the Court to pages 12 to 16 of our reply brief where various criticisms are taken of the Federal Highway Administration's protocol and studies that were in effect and available to them and noted in their... in the Federal Register that they ignored.

The other thing I'd like to address very quickly is the fact that I do not believe that the comment, he is legally blind or blind in one eye, is susceptible to construing the term legally blind separate from the phrase or blind in one eye.

Thank you.

Chief Justice Rehnquist: Thank you, Ms. Gordon.

The case is submitted.

The honorable court is now adjourned until Monday next at ten o'clock.