Justices Hear Disability Cases on Vision
By LINDA GREENHOUSE
WASHINGTON -- The Supreme Court continued an unusually intensive review of
the Americans with Disabilities Act Wednesday, as the justices struggled to
find a definition of disability that would be faithful to the law without
also sweeping everyone with a readily correctable physical problem into its
protective net. After an argument on Tuesday on whether to count as
disabled a truck driver whose severe hypertension was controlled by
medication, the court Wednesday heard two cases involving employees with
vision problems. Twin sisters, regional airline pilots whose vision is
20/20 with their glasses on, were turned down for employment by United Air
Lines because their uncorrected vision was worse than the airline's
requirement of 20/100. The federal appeals court in Denver found they did
not have a disability and so could not sue for discrimination under the
Americans with Disabilities Act. A truck driver who sees out of only
one eye but whose brain has compensated for the deficiency and given him
normal vision in most respects was dismissed by his employer on the ground
that his monocular vision did not meet safety standards. The federal
appeals court in San Francisco ruled that he was disabled, and was entitled
to a trial to show that he was nonetheless qualified for the job. The
central question in the cases is whether a condition should be assessed in
its corrected or uncorrected state for purposes of determining whether a
person is protected by the law. Edwin S. Kneedler, a deputy solicitor
general who presented the government's position that courts should look at
impairments in their uncorrected state, said it was an "anomaly" for United
Air Lines to have "made its decision not to hire precisely on the basis of
uncorrected vision" and then to argue that the women could not sue because
their corrected vision was normal.
The law defines disability as an impairment that "substantially limits one
or more of the major life activities." This use of the "present indicative
tense" showed that Congress was concerned only with conditions as they
actually affect people, Roy T. Englert, Jr., the airline's lawyer, told the
court in arguing that corrective devices should be taken into account.
This answer did not satisfy Justice Stephen G. Breyer, who said he was
concerned that this definition would exclude "the very people the statute
was aimed at," who might be the victims of prejudice on the part of
employers despite managing to function well with their impairments. "They
wouldn't get in the door," Breyer said. Justice Ruth Bader Ginsburg
asked whether, if a nearsighted person whose vision was corrected to 20/20
through laser surgery would be considered for employment, the airline could
exclude someone who achieved the same result by wearing glasses. "Isn't
what's really going on here is that the employer will not accept the
correction?" she asked Englert. The airline's lawyer replied that
"it's not a matter of rejecting the correction, but of saying here's what
it takes to be a safe pilot." Current Federal Aviation Administration
standards permit certification of pilots as long as their vision is
correctable to 20/20. The question of whether United's higher standard is
reasonable is not at issue in this phase of the case, Sutton vs. United Air
Lines, No. 97-1943. If the sisters, Karen Sutton and Kimberly Hinton, are
found to be disabled, they will then have to show that they are nonetheless
qualified for the job they want.
Van Aaron Hughes, the lawyer for the sisters, tried to assure the justices
that they did not need to adopt an all or nothing approach to the
definitional problem. "It's never been our position that the mere fact of
wearing glasses, or any corrective device, is itself a disability," he
said. Rather, he continued, each case had to be evaluated individually.
"The severity of the impairment is critical," he said.
Chief Justice William H. Rehnquist sounded doubtful. "What's the difference
between 20/40 and 20/200 if in their corrected state they're both the
same?" he asked.
In reply, Hughes said the difference was similar to that between two
people, each of whom took a pill. "It makes a difference whether you
swallow a pill for a mild headache in the afternoon or to avoid an
epileptic seizure," he said, adding that what mattered was whether, without
correction, the person faced a substantial limitation on the ability to
perform major life activities. Justice David H. Souter said he felt
himself "at sea on what the criterion for 'substantial' should be. "I have
difficulty in reading restaurant checks in a dim light," Souter said. "I
have a limitation on the 'life activity' of reading. Substantial?" The
law would not treat such a limitation as substantial, Hughes replied.
"Why not?" Souter asked, adding: "The waiter thinks so." The
argument in the case of the monocular truck driver, Albertson's, Inc. vs.
Kirkingburg, No. 98-591, focused on a separate source of confusion, the
statute's alternative definition of disability. The law treats as disabled
not only someone with a substantial limitation but also someone who is
"regarded as" having one. Because the court has never interpreted the
"regarded as" language, its utility as a form of back-up protection,
covering those who might not otherwise come within the statute, is an
important issue in these cases.
Corbett Gordon, the lawyer for the supermarket chain that dismissed the
truck driver, Hallie Kirkingburg, said Albertson's did not regard
Kirkingburg as disabled because it offered him another, lower-paying job as
a mechanic.
Justice Antonin Scalia asked whether a job offer as a floor sweeper would
have shown that the company did not regard Kirkingburg as disabled.
Possibly it would have, Ms. Gordon replied, adding that the focus should be
on the "mental status of the employer." "I really don't know how to
figure it out," Scalia said.
The argument session Wednesday was the last one of the court's current
term. The justices now have roughly two months to complete their unfinished
business, which consists essentially of deciding 39 cases. That is a
substantial number, given the fact that the court has issued decisions in
only 37 cases in the six months since the term began.
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Copyright 1999 The New York Times Company