Albertsons, Inc. v. Kirkingburg, Hallie (06/22/1999)

By: Randee Myerow, Medill News Service

Questions presented

1. Whether a monocular individual is ""disabled"" per se, under the Americans with Disabilities Act (""ADA"") 42 U.S.C. 12112(a) (1994).2. Whether a monocular driver of a commercial motor vehicle, who failed to meet the minimum Department of Transportations vision requirements, is a ""qualified"" individual under the ADA.3. Whether an employer must adopt an experimental vision waiver program as a means of ""reasonable accommodation.""

Brief

On the road again?

Not for veteran commercial truck driver Hallie Kirkingburg who filed suit against his former employer, Albertsons, Inc., because he alleged that the food chain discriminated against him after they refused to reinstate him as a driver because of his eyesight.

Kirkingburg, a truck driver for more than 20 years, has a condition known as ""lazy eye,"" rendering him almost totally blind in his left eye, but his right eye is correctable to 20/20 vision with corrective lenses.

Kirkingburg claimed that Albertsons did not consider his poor vision to be a ""disability,"" as defined by the Americans with Disabilities Act (ADA). Albertsons maintained that Kirkingburg was not disabled and did not meet the companys vision safety requirement standards as set forth by the Department of Transportation (DOT).

Prior to working for the company, Kirkingburg was given an eye exam and was certified under the DOTs regulations. He was also given a road test which he passed. Once on the job, Kirkingburg was reexamined and recertified. However, company policy required that he be reexamined after he returned to work following an extended leave of absence due to a work-related injury. At that time, he was denied certification by the examining physician. Kirkingburg applied for, and later received, a Federal Highway Administration (FWHA) waiver which would have allowed him to continue driving based on his experience and clean driving record.

Albertsons refused to accept or even consider the waiver and Kirkingburg was fired from his position.

Kirkingburg filed suit in federal court in Oregon. The court, however, granted Albertsons summary judgment, finding that Kirkingburg was not disabled and was not qualified for the job.

A divided 9th Circuit Court of Appeals reversed and remanded, finding that Kirkingburg was ""disabled"" and a victim of discrimination. For the majority, Appeals Judge Stephen Reinhardt wrote that the ADA was ""not drafted narrowly to protect only those with the most severe disabilities.""

Kirkingburg was also found to be a ""qualified individual"" and the court's opinion therefore addressed Albertsons refusal to accept the FHWA waiver. Reinhardt wrote that Albertsons was not free to disregard the waiver program. The program was invalidated in 1994 because it did not comply with administrative procedures, but, at the time of Kirkingburgs dismissal in 1992, Albertsons did not have knowledge of this.

In dissent, Appeals Judge Pamela Ann Rymer highlighted the U.S. Court of Appeals for the District of Columbias invalidation of the program and concluded that Albertsons should not be forced to ""assume the risk of waiving vision requirements.""

Rymer also wrote that ""since Albertsons offered to accommodate Kirkingburgs disability by another job (which Kirkingburg rejected), it fulfilled its ADA obligations.""

The U.S. Supreme Court granted certiorari on Jan. 8, 1999.

On June 22, 1999, on a day when the Court decided a total of four disabilities cases, the Court sided with Albertsons, holding unanimously that under the Americans with Disabilities Act, a person's monocular vision alone does not substantially limit that person's sight.

In reversing, the Court criticized the 9th Circuit for being ""too quick to find a disability."" First, the 9th Circuit ""appeared willing to settle for a mere difference"" in work performance rather than a condition that “substantially limits” job performance, wrote Justice David Souter.

Then, pointing to its lead opinion in Sutton v. United Airlines, Inc., decided the same day, the Court decided that mitigating measures must be taken into account in judging whether an individual has a disability. The mitigating measure in Kirkingburg's case was that his brain had developed subconscious mechanisms for coping with [his] visual impairment and thus his body compensated for his disability.

""We see no principled basis for distinguishing between measures undertaken with artificial aids, like medications and devices, and measures undertaken, whether consciously or not, with the bodys own systems,"" Justice Souter wrote.

Most significantly, Souter wrote, the 9th Circuit ""did not pay much heed to the statutory obligation to determine the existence of disabilities on a case-by-case basis"" and found that we no evidence in the record in Kirkingburg's case 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,"" Souter wrote. ""On the contrary, our brief examination of some of the medical literature leaves us sharing the Governments judgment that people with monocular vision 'ordinarily' will meet the Acts definition of disability...We simply hold that the Act requires monocular individuals, like others claiming the Acts 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.""