Kingdom of the one-eyed: ADA advocates show a blind spot on safety.Our topic this month is the interestingly favorable legal status these days of the one-eyed - or, as it's more polite to call them, persons with monocular monocular /mon·oc·u·lar/ (mon-ok´u-ler)
1. pertaining to or having only one eye.
2. having only one eyepiece, as in a microscope.
1. vision. For readers who came in late, the Clinton administration Noun 1. Clinton administration - the executive under President Clinton
executive - persons who administer the law caused a stir last year when it filed suit against United Parcel Service United Parcel Service, Inc. (NYSE: UPS), commonly referred to as UPS, is the world's largest package delivery company, delivering more than 15 million packages a day to 6.1 million customers in over 200 countries and territories around the world. , challenging the company's policy of insisting that drivers of its delivery trucks have sight in both eyes.
That's unlawful discrimination against the visually disabled, said the Equal Employment Opportunity Commission, and it doesn't matter in the least that UPS's policy is based on concern for the safety of other road users rather than on any sort of malice or animus Animus - ["Constraint-Based Animation: The Implementation of Temporal Constraints in the Animus System", R. Duisberg, PhD Thesis U Washington 1986]. toward persons destitute of the usual ocular endowments. Nor does it matter that if a pedestrian happens to dart unexpectedly onto the roadway from the impaired side of one of its newly hired drivers, UPS stands to get sued for a fortune.
After sifting through the cases, I can report that the complaint against UPS by no means represents a novel or unprecedented interpretation of the law. There's now a whole jurisprudence on employers' obligation to turn a blind eye, so to speak, to safety worries when the Hathaway Man shows up in quest of a hazardous-duty assignment:
* The Supreme Court declined in January to review an Americans with Disabilities Act Americans with Disabilities Act, U.S. civil-rights law, enacted 1990, that forbids discrimination of various sorts against persons with physical or mental handicaps. award against the city of Omaha for refusing to rehire Re`hire´
v. t. 1. To hire again. a former policeman who'd lost sight in one eye and was suffering loss of peripheral vision peripheral vision
Vision produced by light rays falling on areas of the retina beyond the macula. Also called indirect vision.
Peripheral vision in the other; the police chief believed those eyesight problems would interfere substantially with the policeman's duties. Estimated payout by the city: $200,000.
* The U.S. Department of Justice extracted a $110,000 settlement from the city of Pontiac, Michigan Pontiac is a city in the U.S. state of Michigan named after the Ottawa Chief Pontiac. As of the 2000 census, the city had a total population of 66,337. It is the county seat of Oakland County6. , which had withdrawn a job offer to a firefighter after a pre-employment physical revealed he could see out of only one eye. Firefighters, like police officers, must be prepared for emergency situations in which visibility conditions may be poor even for those with unimpaired Adj. 1. unimpaired - not damaged or diminished in any respect; "his speech remained unimpaired"
undamaged - not harmed or spoiled; sound
uninjured - not injured physically or mentally eyesight, and where accuracy in spotting dangers or aiming back at them can spell the difference between life and death.
* Also in Michigan, the state Supreme Court confirmed that under state disabledrights law, the Clawson Tank Co. could not exclude from a hazardous job a worker who'd lost an eye in an off-the-job incident. The company had noted that a significant share of injuries in its line of work were injuries to the eye, which were serious enough when they afflicted af·flict
tr.v. af·flict·ed, af·flict·ing, af·flicts
To inflict grievous physical or mental suffering on.
[Middle English afflighten, from afflight, a worker who started out with two intact orbs and could be catastrophic if they deprived a person of his only remaining one. The ruling was not especially controversial: Disabled-rights authorities generally agree that employers no longer enjoy any right to invoke disabled workers' own safety as a reason to exclude them from jobs.
* "Lawsuit Prompts City To Ease Police Eyesight Standards," ran a Columbus Dispatch headline in 1995. The article reported on a successful challenge under the ADA Ada, city, United States
Ada (ā`ə), city (1990 pop. 15,820), seat of Pontotoc co., S central Okla.; inc. 1904. It is a large cattle market and the center of a rich oil and ranch area. to the Ohio capital's former requirement that police recruits bring to the job vision of at least 20/40. The suit "will definitely result in the city coming up with less stringent standards," said city attorney Ron O'Brien, who told the newspaper that the previous eyesight standards had become legally untenable since the law's passage.
* In February of this year, following up on its UPS suit, the EEOC EEOC
Equal Employment Opportunity Commission
EEOC n abbr (US) (= Equal Employment Opportunities Commission) → comisión que investiga discriminación racial o sexual en el empleo sued Northwest Airlines for declining to hire a woman with vision in only one eye for a job which would require her, among other duties, to drive maintenance trucks from one aircraft to another at the Milwaukee airport. Northwest vowed to fight: "It's nonsensical on the face of it that we can't ask someone about their ability to do the job," company spokesman Jon Austin told the Milwaukee Journal Sentinel The Milwaukee Journal Sentinel is a daily morning broadsheet printed in Milwaukee, Wisconsin, USA. It is the primary newspaper in Milwaukee, the largest newspaper in Wisconsin and is distributed widely throughout the state. , adding that the runway ramps tend to be crowded with other ground service vehicles and personnel as well as aircraft. "We need people who can employ depth perception. It's a potentially hazardous situation if they can't. And we want our employees to be safe."
* Last October - you might want to remain seated for this one the U.S. Court of Appeals for the 9th Circuit gave the go-ahead to a lawsuit under Hawaii state disabled-rights law against Aloha Islandair, a passenger airline, for declining to hire a pilot with vision in only one eye. The decision was based on relatively narrow legal grounds, overturning a lower court opinion which had found that federal aviation laws preempted the right to file such suits under state law.
Significantly, however, the appellate court A court having jurisdiction to review decisions of a trial-level or other lower court.
An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed. dropped some broad hints that it expected the complainant A plaintiff; a person who commences a civil lawsuit against another, known as the defendant, in order to remedy an alleged wrong. An individual who files a written accusation with the police charging a suspect with the commission of a crime and providing facts to support the allegation to win when he got back to state court, the reason being that the Federal Aviation Administration Federal Aviation Administration (FAA), component of the U.S. Department of Transportation that sets standards for the air-worthiness of all civilian aircraft, inspects and licenses them, and regulates civilian and military air traffic through its air traffic control has not banned persons with monocular vision from flying planes - and so long as it hasn't, the court suggested, airlines shouldn't imagine that they can institute such hiring criteria on their own.
Employers haven't lost all the cases. For instance, the American National Can Company prevailed in a lawsuit in the Iowa courts after it dismissed an operator who'd gotten into three accidents driving a forklift truck and whose subsequent medical exam revealed that he was legally blind in one eye.
In another case, a New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of state court allowed the Wackenhut Corp. to turn away a would-be armed security guard at Consolidated Edison's Indian Point Indian Point may refer to:
Vision in which both eyes are used synchronously to produce a single image.
Using both eyes at the same time to see an image.
Mentioned in: Presbyopia .
If you're an employer, then, there are two seemingly reliable ways to win a vision-safety suit under the ADA and its parallel state statutes. One is to hire all corners, then sit back and wait for the accidents to happen; if they're numerous and severe enough, you may then be permitted to remove (or at least transfer) the particular worker who got into them.
Short of an actual trail of accidents, your task under the ADA - one that's intended to be difficult, and usually is - is to muster affirmative proof that a prospective risk is both "direct" and "substantial," with the threat of a back-pay award hanging over you should a court disagree. It isn't enough to show an "elevated" statistical risk, even if, averaged over a large number of hiring decisions, such statistical differences translate into a certainty of more accidents and injuries.
Your second hope, as in the Con Ed case, is that some federal safety regulation can be found on the books that forbids you from hiring the person. This principle is emerging as the keystone of enforcement policy at the EEOC and its counterpart state agencies: They keep taking the position that if government regulators have set some minimum eyesight requirement for truckers or aviators Well-known aviators
People largely known for their contributions to the history of aviation
While all of these people were pilots (and some still are), many are also noted for contributions in areas such as aircraft design and manufacturing, navigation or , it's improper for employers to hold out for any more than that, which is to say it's improper to make their workplaces any safer than is mandated by law. The government is comfortable, you understand, with the idea of a hiring practice's being either mandatory or forbidden; what gives it the heebiejeebies is this uncanny in-between state of affairs sometimes known as "liberty."
Already there are the first hints in the trade press of the inevitable employer reaction: A few businesses and trade associations, alarmed at the wave of ADA demands and looking for Looking for
In the context of general equities, this describing a buy interest in which a dealer is asked to offer stock, often involving a capital commitment. Antithesis of in touch with. some line of defense, are beginning to think about working to get the various federal personnelsafety regulations tightened in hopes of tying their own hands and requiring them to reject applicants with borderline physical capacity. Since such regulations inevitably tend to be somewhat overbroad, an ironic result would be to bar an occasional individual with compromised vision from particular jobs even though the employer in question, left to its own discretion and knowing in some detail what the job does and does not require, would have judged him an acceptable risk.
In the highway case, for instance, federal Department of Transportation regulations bar monocular drivers from obtaining new licenses to drive heavy tractortrailers and other vehicles of more than 10,001 pounds, as well as vehicles transporting hazardous materials and passenger vehicles carrying more than 16 persons. When it comes tO smaller vehicles and those of other classes, the regulations have heretofore left things up to the employer's discretion. The EEOC now argues that because UPS delivery trucks do not fall into the very heavy class and do not carry passengers or hazardous materials, the company's safety rationale can be dismissed out of hand.
Vehicle class and weight happen to be two of the traffic safety variables that federal regulators can conveniently reach, so they've proceeded to regulate along those lines. Yet the weight and class of a truck are only two variables - and perhaps not always the most important ones - in a safety analysis.
As it happens, there continue to roam the highways quite a few veteran monocular drivers who began operating heavy trucks in less-regulated days and were "grandfathered" into later rules, and some have compiled long accident-free records. Indeed, at one point DOT even tried to liberalize lib·er·al·ize
v. lib·er·al·ized, lib·er·al·iz·ing, lib·er·al·iz·es
To make liberal or more liberal: "Our standards of private conduct have been greatly liberalized . . . its waiver process to allow more monocular drivers to graduate to heavier trucks if they could demonstrate excellent safety records in lighter vehicles, but it had to stop after it got successfully taken to court by a be-safe-or-we'll-sue group called Advocates for Highway and Auto Safety.
It's quite possible, when you get down to it, that UPS's own internal rule makes more sense than the DOT regulation. Conceivably the loss of peripheral vision and close-range depth perception associated with monocularity might be a relatively minor disadvantage out on the interstate, where not many hazards are apt to emerge quite unexpectedly from the side of the driver's visual field. The same disadvantages might prove more serious in a regimen of stop-and-go driving in densely populated neighborhoods, with constant backing up and tums into residential driveways - typical duties for a UPS delivery person.
"Blindness" as a metaphor has come to carry distinctly pejorative pejorative Medtalk Bad…real bad overtones, implying a foolish or willful overlooking of facts that are plain for all to see. That's a bad rap on those who struggle with literal vision impairments; there's no reason to think they're any less keen on apprehending truth than the rest of us, or any less capable of applying sound judgment to the truths they apprehend.
But it's only too appropriate a metaphor for the diehard advocates of the ADA, who elect ever more foolishly and willfully willfully adv. referring to doing something intentionally, purposefully and stubbornly. Examples: "He drove the car willfully into the crowd on the sidewalk." "She willfully left the dangerous substances on the property." (See: willful) to direct their attention away from the mounting dangers their pet law poses to the safety, as well as the liberty, of the nation they presume to govern.
Contributing Editor A contributing editor is a magazine job title that varies in responsibilities. Most often, a contributing editor is a freelancer who has proven ability and readership draw. Walter Olson (email@example.com) is a senior fellow at the Manhattan Institute and the autor most recently of The Excuse Factory: How Employmet Law Is Paralyzing the American Workplace (The Free Press).