Catch-22 for the able disabled

Supreme Court hears arguments this week on how far the Americans with

A truck driver with one good eye, two nearsighted airline pilots, and a mechanic diagnosed with high blood pressure are all posing the same question this week to the nine justices of the US Supreme Court.

"Am I disabled?" they ask.

The answer to that question could have profound ramifications, not only for these four, but for tens of thousands of American workers who may face unfair or biased treatment because of a mental or physical challenges.

The Americans with Disabilities Act was passed by Congress in 1990 to outlaw the kind of prejudice that historically excluded many of the disabled from the workplace. By placing stereotypes about the disabled on the same level as racism, Congress sent an unmistakable message to American employers that they must value and accept workers for their abilities rather than rejecting them because of a disability.

But now, more than eight years after the ADA became law, employers are increasingly complaining that minimum safety requirements for jobs like driving trucks or piloting airliners are being undercut by individuals claiming to be disabled who are seeking special accommodations.

Employers want the definition of who qualifies for protection under the ADA to be significantly narrowed to exclude from the ranks of the disabled anyone with a correctable condition. They argue, for example, that a nearsighted pilot who has perfect vision while wearing contact lenses shouldn't be considered disabled.

And employers want the court to say clearly that they can adopt minimum government-set safety standards and apply them to all prospective employees regardless of whether they are disabled.

On the other side are employees and disabled rights advocates who are urging the court to embrace a broad definition of who is disabled so that the law will continue to protect as wide a group of workers as possible.

"Will disability be thought of as a relatively rare, limited category that will apply in fairly extreme cases," asks Wendy Parmet, a professor at Northeastern University School of Law in Boston. "Or will disability be seen as a more common condition, which exists when an individual has a physical or mental health condition which to some extent interferes with their ability to work?"

The issues come to the court in three different cases. The first, involving the mechanic diagnosed with high blood pressure, was heard April 27. The other two cases were heard April 28.

Legal analysts say the court's decisions in these three cases will determine whether the ADA continues to play a role as a major civil rights law or is relegated to second-class status among American laws and regulations.

Disability Catch-22

The case may help ease a Catch-22 dilemma created by the ADA in which disabled workers must prove they are disabled enough to qualify for ADA protection. At the same time they must demonstrate they are not so disabled that they are unable to perform effectively in the workplace.

"People have to have a fair chance to get a job, and you can't have a fair chance where people are excluded just because their uncorrected vision makes an employer uncomfortable," says Guy Wallace of the Employment Law Center of the Legal Aid Society of San Francisco. He says companies must give a legitimate reason for not hiring a disabled worker who has the ability to do the job.

"The question is, are these assessments [to fire or not hire workers] made based on reasonable and objective facts rather than knee-jerk or stereotypical or simply traditional judgments," says Ms. Parmet.

In Vaughn Murphy's case, he was fired as a mechanic at UPS in Topeka, Kan., because his blood pressure exceeded levels necessary to qualify for a Department of Transportation health card as required by the company. If they don't meet the minimum DOT requirements, no job.

Mr. Murphy sued UPS under the ADA claiming he was the target of discrimination. UPS countered that he could not sue under the ADA because he wasn't disabled. The company contended that Murphy's medication significantly reduced his symptoms. But perhaps in the ultimate irony, the company also said his high blood pressure nonetheless made him unfit to work at UPS.

UPS claimed Murphy was too disabled to work, but not disabled enough to qualify for protection under the disabilities act. Both a federal judge and appeals court agreed with UPS, ruling that Murphy was not disabled because he was taking medication.

Focusing on vision

Karen Sutton and Kimberly Hinton are identical twins and are both experienced pilots flying for regional air carriers. It is their lifelong dream to work for a major global air carrier. But both were rejected by United Airlines because they are nearsighted.

Ms. Sutton and Ms. Hinton admit their eyesight is such that they are unable to drive a car or watch television without glasses or contact lenses. But, they argue, with corrective lenses they enjoy perfect vision, and are capable of safely flying commercial airliners.

United says all pilots must meet minimum uncorrected vision standards as a basic safety requirement.

Sutton and Hinton sued. United argued that nearsightedness is a common and easily corrected impairment, and thus the women are not disabled. A federal judge and an appeals court panel agreed with United.

Hallie Kirkingburg lost his job as a truck driver for the Albertson's grocery store chain in Portland, Ore., because he could not pass a Department of Transportation eye exam. Mr. Kirkingburg has one good eye but nonetheless has worked much of his life as a truck driver. He has a near perfect driving record and has never caused an accident.

But Albertson's fired Kirkingburg when he could not pass the DOT exam. Later, when Kirkingburg obtained a vision waiver from the Federal Highway Administration certifying that he was a safe driver, Albertson's still refused to give him his job back.

Kirkingburg sued. The case was thrown out by a federal judge who ruled that Kirkingburg was unable to perform an essential function of his job - passing the DOT eye test.

A federal appeals court reversed that decision. It ruled that Kirkingburg is disabled and that Albertson's must give him a job because he obtained the vision waiver and is a safe driver regardless of his disability.

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