Metropolitan News-Enterprise


Friday, September 16, 2005


Page 1


Ninth Circuit Rejects One-Eyed Drivers’ Bias Claims Against UPS


By KENNETH OFGANG, Staff Writer/Appellate Courts


California’s law banning job discrimination against the disabled does not require the hiring of otherwise-qualified commercial drivers who are vision-impaired in one eye and lacking in peripheral vision, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In an opinion by Judge Susan P. Graber, the panel said United Parcel Service’s “Vision Protocol,” which requires drivers to have some central vision and some peripheral vision in each eye, falls within the Fair Employment and Housing Act’s public safety exception.

UPS adopted the protocol in 1995 to accommodate job applicants who were unable to meet Department of Transportation vision standards but who could, in the company’s view, drive panel trucks weighing 10,000 pounds or less. The smaller trucks make up about eight percent of the company’s fleet, and their drivers are not subject to DOT standards.

Before introducing the protocol, UPS required that all of its drivers meet the federal standards, which require at least 20-40 vision in both eyes. The protocol requires that drivers have at least 20/40 vision in one eye, 20/200 in the other, peripheral vision of 70 degrees in each eye or a combined horizontal visual field of 140 degrees, and peripheral acuity of at least 20/200 in each eye.


The Equal Employment Opportunity Commission sued UPS in 1997, alleging that the protocol, as applied to drivers who could not meet the peripheral vision standards, violated the Americans With Disabilities Act. Several individual applicants intervened in order to present claims under both the ADA and the FEHA.

The case went to trial in 2000 before U.S. District Judge William Alsup, who found that the protocol violated the ADA to the extent it prohibited drivers with acceptable central vision and some peripheral vision from being hired.

“A substantial number of monocular applicants could be just as safe as the run of binocular drivers regularly hired by UPS,” the judge said. He said the evidence showed that many people with little or no sight in one eye learn to compensate, turning their heads frequently to make up for lost peripheral vision and noting that most states, including California, allowed them to receive regular driver’s license.

Alsup ordered UPS to admit one of the intervenors, Shawn Hogya of Santa Rosa, into its regular driver training program for evaluation. Hogya testified that he was legally blind in one eye because of a baseball injury at 14 but retained some peripheral vision in the eye.

He said he was hired by UPS in 1990, applied for a driver’s job in 1994, passed the company’s written exam and road test but was disqualified after telling a doctor about his eyesight..

While the company’s appeal was pending, six plaintiffs sued in actions that were later consolidated, alleging that the protocol violated their rights under FEHA only.

First Ruling

In 2002, while that suit was still pending, the Ninth Circuit ruled on the UPS appeal in the first case, holding that the district judge had applied the wrong standard in determining the issue of disability.

  On remand, Alsup ruled that none of the employees was disabled under the ADA, which the Ninth Circuit said requires that the disability affect daily life and not merely employment. With respect to the intervenors, the judge ruled that all were barred from relief, either because they were not disabled, even under FEHA’s more liberal standard, or as unqualified.

  In the alternative, he ruled that UPS had established, as an affirmative defense under FEHA, that the hiring of one-eyed drivers lacking in peripheral vision would “endanger the health or safety of others to a greater extent that if an individual without a disability performed the job.”

  He cited expert opinion that “generally supports the proposition that monocular drivers as a whole are involved in more accidents than others as a whole,” although “not dramatically more;” that peripheral vision plays an important role in avoiding accidents and that “the monocular driver has less opportunity to see a child or any other pedestrian or cyclist or car darting from the impaired side.”

As to the plaintiffs in the second suit, Alsup ruled that they met the FEHA definition of disability and certified the case for interlocutory appeal.

In yesterday’s ruling, the Ninth Circuit, which consolidated the appeals, agreed that all of the applicants were disabled within the meaning of FEHA, but upheld Alsup’s ruling with regard to the safety defense.

Graber explained:

“We do not suggest that any vision protocol would pass muster. But because the UPS Vision Protocol rests on objective and statistical evidence that monocular drivers are involved in somewhat more accidents than binocular drivers, because the risk of harm to others is high, because the UPS standard does not categorically exclude monocular individuals from working as full-time package car drivers, and because the application of the Protocol is individualized to each employee or applicant, we are persuaded that UPS must prevail on its safety-of-others defense.”

The ruling, which was joined by Judges Andrew J Kleinfeld and Michael Daly Hawkins, keeps the second lawsuit alive, since the safety defense was never ruled on in that case.

The case is Equal Employment Opportunity Commission v. United Parcel Service, Inc., 03-16855.


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