Sutton v. United Air Lines, Inc. – Oral Argument – April 28, 1999

Media for Sutton v. United Air Lines, Inc.

Audio Transcription for Opinion Announcement – June 22, 1999 in Sutton v. United Air Lines, Inc.

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William H. Rehnquist:

We’ll hear argument now in No. 97-1943, Karen Sutton and Kimberly Hinton v. United Air Lines.

Mr. Hughes.

Van Aaron Hughes:

Mr. Chief Justice, and may it please the Court:

Because this matter was decided by the lower court on a motion to dismiss, for purposes of today’s argument, United cannot dispute the nature of the discrimination that occurred here.

Petitioners have gone to great lengths to make themselves eminently qualified to fill the piloting positions at issue here, but were excluded from those positions by United based not upon their actual abilities, but based only upon its preconceived notion of what a person who shares their impairment can and cannot do.

Now, United contends that even if it discriminated in just this manner, it cannot be liable under the Americans with Disabilities Act because, as a matter of law, the ADA can never protect one with severe but correctable myopia.

United’s intuition that myopia is somehow distinct from other correctable impairments does not withstand serious scrutiny.

Petitioners here are actually disabled within the meaning of the ADA or, at a minimum, they were regarded as disabled with respect to the ability to work by United.

William H. Rehnquist:

Is that raised in your petition for certiorari, whether they were regarded as disabled?

Van Aaron Hughes:

Yes, Your Honor, it is.

William H. Rehnquist:

Whereabouts?

Van Aaron Hughes:

The… I believe it was the third question presented in our petition, read as followed: Is a commercial pilot regarded as disabled by a major airline that refuses to employ her as a pilot for that airline due to her poor vision?

Antonin Scalia:

As far as actual disability is concerned, let me ask the same question that… that we put to counsel yesterday.

If myopia, correctable myopia, which requires nothing more than eyeglasses, is included within the definition of disability, how do you account for the fact that the act itself estimates there are some 43 million disabled people in America?

Van Aaron Hughes:

Justice–

Antonin Scalia:

There would be many, many, many more than that if… if you are counting people who have to wear eyeglasses.

Van Aaron Hughes:

–I agree, Justice Scalia, that there are more than 43 million Americans who wear glasses.

It has never been our position that the mere fact of wearing glasses or, indeed, the mere use of any corrective measure is in itself a disability.

Our position is that Congress intended not to identify bright line categories of what are and are not disabilities, but rather to require courts to evaluate the severity of each person’s impairment on a case-by-case basis.

How do you find in the text of the statute?

Where do you get that in the statute?

Van Aaron Hughes:

The statute–

Antonin Scalia:

It’s a nice idea.

Maybe they could have done that.

How did they do it here?

Van Aaron Hughes:

–The statute requires that… that each impairment be substantially limiting with respect to a major life activity, and moreover, the definition requires a substantial limitation of the major life activities of such individual.

I read that as not requiring the court to define each impairment and state each impairment in every case is a disability or is not a disability.

That’s a different approach that Congress could have followed, but Congress didn’t follow that… that approach.

Congress required each person’s impairment to… to be evaluated.

There is no dispute in this case–

Antonin Scalia:

I’m not following you.

You’re saying it’s not substantially limiting if you use some eyeglasses, but it is… if it can be corrected with some eyeglasses, but it… it is substantially limiting if it can be corrected with other eyeglasses?

Van Aaron Hughes:

–That’s correct.

The substantial limitation–

Antonin Scalia:

I mean, the only limitation of putting on eyeglasses is putting on the eyeglasses.

I mean, you know, whatever the… the corrective prescription is, the only limitation involved is putting on the eyeglasses, whereupon you see as well as anybody else.

But you’re saying some eyeglasses are different from others.

Van Aaron Hughes:

–That’s correct.

I don’t… I respectfully disagree that putting on the eyeglasses as the substantial limitation is identical for each person who wears eyeglasses.

The substantial limitation is that some persons cannot see without eyeglasses.

William H. Rehnquist:

What’s… what’s the difference between someone, say, with 20/40 vision who puts on eyeglasses and is corrected to 20/20 and someone who has 20… 20/200 vision and puts on eyeglasses and it’s corrected to 20/20?

So far as their corrected state, they’re both the same.

Van Aaron Hughes:

In the corrected state, that’s true.

They’re both the same, just as any person who… who swallows a pill once a day and is able to function by taking that medication is in the same boat.

But it does make a difference whether you’re swallowing the pill to avoid mild headaches in the afternoon as opposed to swallowing the pill because you might have an epileptic seizure.

Stephen G. Breyer:

Could you address the question of why you should look to the uncorrected state rather than the corrected state in order to determine whether the person is disabled?

At some point, would you… are you going to get to that?

Van Aaron Hughes:

Yes, Your Honor, and I’ll address that right now.

Our reading of the statute is that the inability to perform a major life activity without the use of corrective measures is itself a substantial limitation.

Now, respondent United reads the statute differently and says, if you can perform the major life activity by the use of a corrective measure, then by definition you’re not substantially limited.

Now, those are two alternative readings of the statute.

I believe this Court has already gone a great distance toward answering that question in Bragdon v. Abbott when this Court instructed that the act deals not with utter inabilities to perform a major life activity, but substantial limitations on that.

Ruth Bader Ginsburg:

Mr. Hughes–

–I–

–this seems to be a rather abstract categorization.

We have, as I understand it, a test that’s… what is it?

20 over 120.

That’s how the airline draws the line for the… so–

Van Aaron Hughes:

20… 20 over 100, Justice Ginsburg.

Ruth Bader Ginsburg:

–Oh, 100, yes.

Ruth Bader Ginsburg:

Would you put all people who, without the correction… go from 100 to 400… all those people would fit within the disabled category?

Because there’s something different between a mere impairment and a substantially limiting one.

Van Aaron Hughes:

That’s correct.

And some persons who don’t have perfect vision, 20/20 vision, may not even be impaired if they’re within the norm.

Some persons will be impaired.

Some persons will be impaired but not substantially limited.

Ruth Bader Ginsburg:

I would… I’d like you to address what the standard is in this case.

It’s 20 over 100.

Everyone who flunks that test would meet your definition of substantially–

Van Aaron Hughes:

I… I can’t say that as a matter of fact.

It will require a case-by-case determination.

I know that in this case the allegations are that these particular plaintiffs cannot see without glasses.

United has conceded–

Ruth Bader Ginsburg:

–But what difference does that make in terms of who is being protected?

Here’s a standard.

A number of people, all of whom are visually impaired, can’t make it.

Why would… and they’re equally correctable.

Why would Congress want to say for the ones who are, say, 200, they are protected by this act, but the ones who are only 100 are not?

Van Aaron Hughes:

–Congress clearly did intend to draw a line where not everyone would be covered, and I believe substantial limitation requires that we analyze the severity of each person’s impairment.

I know–

David H. Souter:

Does substantial limitation take into account the job market, or is it substantial limitation in the abstract because this definition covers all the titles in… in the ADA?

Van Aaron Hughes:

–As far as whether substantial limitation covers the job market–

David H. Souter:

In other words, what I’m getting at is it might make… I don’t… I’m not… I don’t think we’ve got this, but it might make sense to say your limitation is substantial if you can’t do the job without putting the glasses on even though your eyesight is imperfect.

And… and so, we draw a pragmatic line.

But I’m guessing that… that even on your theory, that is not how we would judge what is substantial because I think we’re dealing with a general definition here which is not limited simply to the employment category.

Van Aaron Hughes:

–That’s correct.

Substantial–

David H. Souter:

So… so, that leaves us then at sea as to… as to what the criterion for substantial should be, and I take it you’re not saying that substantial is anything which is different from the uncorrected average in the population.

And substantial, we’ve just said, cannot be determined in relation to what is necessary to do the job.

So, what does it mean?

David H. Souter:

Where are we?

Van Aaron Hughes:

–We’re at the point of having to analyze on a case-by-case basis the severity of each person’s impairment which certainly doesn’t create the… a bright line test that–

No, but that… that doesn’t take–

–How do you judge severity?

You say you don’t judge severity by ability to do the job.

Then what do you judge it by?

You pick a number?

100, 200, 300?

Van Aaron Hughes:

–You judge it by the person’s ability to perform that life activity.

Here we’re… we’re looking at seeing.

So–

Antonin Scalia:

I thought you said no.

I thought you said it’s not judged by the ability to perform the job.

Van Aaron Hughes:

–It’s not judge by the ability to perform a job, unless we’re talking about the major life activity of working.

If we’re talking about the major life activity of seeing, it’s judged by can you see, can you do the things that a person with normal eyesight can do.

David H. Souter:

Well, but… there again, I don’t know where that gets us to draw the line.

I have difficulty reading restaurant checks in dim light.

[Laughter]

Does… you know, there is… there is an activity… a life activity of reading in which in some circumstances I have difficulty.

Substantial?

Van Aaron Hughes:

That is a limitation.

It’s certainly not a substantial limitation.

David H. Souter:

Why not?

Van Aaron Hughes:

Well, on a case-by-case–

David H. Souter:

The waiter thinks so.

[Laughter]

But why not?

Seriously.

Van Aaron Hughes:

–Well, because I believe if you can see for most contexts, if there’s one particular, isolated context where you have some difficulty, like reading a menu in dim light, I would anticipate that a court would not find that to be a substantial limitation on your ability to see.

Antonin Scalia:

Oh, but… but being… not being able to read at all… I mean, I cannot read without reading glasses, and I would not be able to function in this job or in any job I’ve ever had.

Antonin Scalia:

You know, I’ve been a teacher.

I’ve been… all jobs that required reading.

Now, there are a lot of Americans like that whose job requires reading, maybe 100 million.

100 million anyway.

Are they all covered by the Americans with Disabilities Act?

Van Aaron Hughes:

The inability to read without glasses would be one example of a limitation of your ability to see.

Whether that’s a substantial limitation is open to question.

Anthony M. Kennedy:

If you have substantial limitation–

–What’s your answer to the question?

–that’s on a… on a case-by-case basis, that seems to contradict the finding of and the purpose of Congress which is to say there is a discrete and insular minority here who are subjected to stigmatizing treatment in society.

That whole concept seems to drop out of your reading of… of the statute.

Van Aaron Hughes:

I don’t… I don’t believe so, Your Honor, because I believe that the number of people who honestly can’t perform life activities without corrective measures… I don’t assume that that’s a staggering number.

We’ll never know because most of those people never experience discrimination.

And certainly this case does not violate Congress’ intentions with respect to the ADA.

Anthony M. Kennedy:

Well, I think one of the things that’s bothering the Court is that we assume that a significant number of legislators and Congressmen had severe myopia and we can’t imagine that they thought they were disabled when they enacted this law.

I think that’s something that’s in the back of… of our minds as we’re asking these… these questions today and yesterday.

Van Aaron Hughes:

I don’t agree with that for two reasons.

One is what I’ve attempted to articulate, which that… is I think the severity of a person’s impairment is critical under the statute.

Secondly, this is a… a case where at a minimum petitioners were regarded as being limited in the ability to work, and so it’s difficult for me to conceive that this isn’t–

Sandra Day O’Connor:

Well, were they regarded as limited in their ability to do a single job, to wit, as a pilot for United?

Van Aaron Hughes:

–I don’t believe so.

I believe they were limited in the ability to perform a class of jobs, all of the jobs requiring the same skills, training, and ability.

Sandra Day O’Connor:

Well, a class of jobs for United?

They… they were working as regional airline pilots, were they not?

Van Aaron Hughes:

That’s correct, Justice O’Connor.

Sandra Day O’Connor:

Are they still?

Van Aaron Hughes:

One of the two is still working for a regional airline, yes.

Sandra Day O’Connor:

So, what we’re dealing with here is a specific job as pilot for United, are we not?

Van Aaron Hughes:

No, I don’t believe that’s the case.

What we’re dealing with is specifically United’s perceptions.

Van Aaron Hughes:

United’s perception was that these petitioners were unfit–

Sandra Day O’Connor:

Well, I’m looking at EEOC’s regulation which attempts to define whether one is substantially limited in the major life activity of working, and it says, the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

Is that what we have here?

Van Aaron Hughes:

–Your Honor, with respect to the actually disabled prong, which is what that… that language goes to, yes, it is the case that petitioners are not actually disabled with respect to the ability to work because they’re able to work in other positions in the same class of jobs.

Sandra Day O’Connor:

So, that’s not your claim and that’s not the… the complaint.

Van Aaron Hughes:

That’s correct.

Sandra Day O’Connor:

It… it is instead a substantial limitation on the ability to see?

Is that… or what is it?

Would you explain?

Van Aaron Hughes:

Yes.

We have… we have two independent arguments.

One is that we were actually… that my clients were actually substantially limited in the ability to see.

The second is that they were regarded by United as being substantially limited in the ability to work.

And in the regarded as prong, it’s the employer’s perceptions that are at issue.

That’s–

Sandra Day O’Connor:

Well, but on the regarded as prong, it again is related to a single, particular job, pilot for United.

Van Aaron Hughes:

–Your Honor, we’re not… I don’t believe we’re talking about a single job.

If United had said you can’t fill this position or these particular positions, but you can fill these other positions, that would be a different example.

Or if–

Sandra Day O’Connor:

Well, the only job applied for was pilot for United.

Now, is that a… a single job within the meaning of the EEOC reg?

Van Aaron Hughes:

–Let’s not misunderstand, Justice O’Connor.

We’re talking about thousands of jobs at United within the entire spectrum of the relevant class of jobs.

So, United barred us… barred my clients from all such jobs, and there’s no distinction between United’s jobs and piloting positions with any other airline.

Antonin Scalia:

Well, the question isn’t what United barred them from.

The question is how did United regard them.

Van Aaron Hughes:

That’s correct.

Antonin Scalia:

Did United regard them as unemployable by any major airline?

It certainly didn’t.

United acknowledged all through this that we have set higher standards.

Antonin Scalia:

How can you say that United regarded them as disabled in that meaning?

Van Aaron Hughes:

I don’t believe that that’s the appropriate inquiry, whether United recognized that there might be other employers who didn’t share its perceptions.

If that were a defense, one could never bring a claim for being regarded as disabled–

Antonin Scalia:

Oh, sure.

Sure, it could.

I mean, somebody would… would turn someone down who has HIV, for example, and… and because of the… what… what is the phrase that’s used in connection with the regarded as clause?

Because of myths and shibboleths?

No, it isn’t shibboleths.

What… there’s–

–Stereotypes.

Stereotypes is the word.

[Laughter]

Because of myths and stereotypes, United thinks that a… that a person with HIV can’t function either at United or anywhere else, and then bang, you have them for regarding you as being disabled even though you’re not disabled.

But this is not that case.

United says, you know, you’re welcome to go to other airlines, but we’re a cut above other airlines.

We hire people only with really good vision.

Van Aaron Hughes:

–I have a hard time understanding why United couldn’t make the same argument in that case and simply say, we have a high physical standard.

It doesn’t include people who are HIV positive, but other airlines will hire you.

So, therefore, we aren’t regarding you as disabled.

Antonin Scalia:

Well, if they could, it’d be hard to convince a jury of that, but… but if they did have that view, they wouldn’t be regarding you as disabled.

They’d be regarding you as just not good enough for United.

Van Aaron Hughes:

I think you’re right, and I think you’ve put your finger on it, that you’ve got to convince a jury of that.

This is a factual question whether… what United’s perceptions were, how United applied its perceptions.

We’ve alleged that… my clients have alleged that they are not limited in their ability to perform the relevant work, but that United believes that they are, that there’s a legitimate, job-related safety requirement that prevents them from being airline pilots, not just–

Sandra Day O’Connor:

Wasn’t there–

–You… you told me before, though, that you were not relying on the major life activity of working.

Are you or aren’t you?

I’m confused.

Van Aaron Hughes:

–We are relying on the major life activity of working with respect to the regarded as disabled prong of the disability definition.

Our claim and our allegations are that United perceived these two people to be unsuited for the positions of flying and not just particular–

Sandra Day O’Connor:

For positions that United–

Van Aaron Hughes:

–Well, that’s all that United could do.

United doesn’t have the power–

Sandra Day O’Connor:

–Well, they have other jobs too presumably.

Van Aaron Hughes:

–Certainly United has administrative positions or teaching positions, and at a minimum it’s an issue of fact whether those types of positions involve the same training, skills, and abilities as piloting positions.

And I don’t believe one could say that a person who’s been trained to be a pilot is limited… is not limited in the ability to work if they’re told they can’t be a pilot any more than one who’s been trained to… to be a lawyer is not limited in the ability to work if they’re told they can’t practice law.

Antonin Scalia:

What do you–

–Your… your opponents claim that… that below, and until you got to this Court, your claim of regarding the job category was not all airline pilots, but only pilots for global airlines.

Van Aaron Hughes:

That’s correct, Your Honor.

Antonin Scalia:

Is that… that is correct.

Van Aaron Hughes:

We stated a more narrow definition of the relevant class.

The Tenth Circuit disagreed and defined the class more broadly.

We accept the Tenth Circuit’s definition because our allegations still satisfy that definition.

With the Court’s–

Ruth Bader Ginsburg:

Suppose the employer’s point of view is the reason I don’t accept this corrective is this is a risky business.

Glasses can be broken.

Contact lenses can be lost.

Glasses can become foggy at an urgent moment.

Under which notch would that defense fit?

Van Aaron Hughes:

–That will either be a demonstration of a job-related requirement or a direct threat to safety.

Either of those would be a factual showing.

It’s contrary to our allegations.

Ruth Bader Ginsburg:

That’s for the employer to show; whereas, basic qualification is for the would-be employee to show?

Van Aaron Hughes:

Basic qualifications are for the employee to show, but the… the employer can still show that it has a job-related physical standard.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Hughes.

Mr. Kneedler, we’ll hear from you.

Edwin S. Kneedler:

Thank you, Mr. Chief Justice, and may it please the Court:

Respondent argues that although it made its employment decision precisely on the basis of the limitations imposed by petitioners’ impairment without mitigating measures, the ADA requires a court to ignore those very same limitations and look only to petitioners’ ability to perform with corrective measures.

We submit that the ADA does not require that anomalous result.

Edwin S. Kneedler:

The agencies charged by Congress with implementing and interpreting the ADA–

William H. Rehnquist:

Say again what you conceive the anomaly to be, Mr. Kneedler.

Edwin S. Kneedler:

–The… the anomaly in this case is–

William H. Rehnquist:

Speak kind of a little bit slower.

Edwin S. Kneedler:

–I’m sorry.

The anomaly is that respondent United made its decision not to hire the petitioners precisely on the basis of their uncorrected vision, but they are claiming that the ADA requires a court to look only at their vision in its corrected state.

And we believe that… that is–

Anthony M. Kennedy:

Do you think… do you think that the statute should be interpreted so that it depends on how the particular employer looks at the applicant?

In case one, if the employer looks at the applicant in the uncorrected state, the act applies there?

If it looks at it in the corrected state, the act applies there?

Edwin S. Kneedler:

–No.

I’m not… I’m not submitting that.

Anthony M. Kennedy:

All right.

Then… then United can’t really be chastised for creating an anomaly.

All… all it’s saying is that the act means one thing or the other.

Edwin S. Kneedler:

No.

My… my only point is, to use this case as an illustration why the… why it makes sense for the act to look to the… to the impairment in its uncorrected state, that has been the interpretation of the agencies which is entitled to Chevron deference under this Court’s decision in Bragdon.

And that’s also supported by the text of the act which only mentions the impairment and the substantial limitations that flow from that impairment.

There’s no mention of mitigating measures and–

William H. Rehnquist:

How about the 43 million figure?

Edwin S. Kneedler:

–The 43 million figure, Your Honor… there’s no indication what Congress was referring to when it looked at that.

When one traces it back… and the… the respondents… or petitioners’ reply brief addresses this in some detail.

You trace it back to reports of the National Council on Disabilities, pages 9 and 12 and 13–

William H. Rehnquist:

Well, but 43 million is in there as a fact.

Edwin S. Kneedler:

–Right, right.

As to that point, we are certainly not saying that everyone who is nearsighted as a disability under the act.

And let me explain why.

The… the statutory phrase is whether someone is substantially limited, and the way that the implementing regulation sensibly defines substantially limited is whether the individual is significantly restricted with respect to that major life activity as compared to the average person.

So, it is necessary… substantially limited is… is a relative point.

You have to be substantially restricted as to the average person.

William H. Rehnquist:

But where do you get that out of the statute, that–

Edwin S. Kneedler:

From… from the phrase substantially limited.

In order to–

Sandra Day O’Connor:

–Yes, but it doesn’t answer whether you view it corrected or uncorrected.

I mean–

Edwin S. Kneedler:

–No, no.

I’m–

Sandra Day O’Connor:

–it just is not apparent from the face of the statute–

Edwin S. Kneedler:

–I… I was responding–

Sandra Day O’Connor:

–that we wouldn’t look at the corrected–

Edwin S. Kneedler:

–No.

I was simply–

Sandra Day O’Connor:

–vision.

Edwin S. Kneedler:

–responding to the Chief Justice’s point that 43 million speaks to that question, and I think it does… does not.

Here we have people who so far depart from the norm that they are alleged to be legally blind.

Stephen G. Breyer:

If you use… what’s worrying is if you say it should be uncorrected.

Edwin S. Kneedler:

Yes.

Stephen G. Breyer:

And then you read out of the statute people who have glasses like this.

I borrowed them from Justice Scalia.

But I need them too.

That’s not true.

I need them too.

[Laughter]

And I couldn’t function without them.

All right.

Now, are you reading all people like me out of the statute?

Well, what’s the answer?

Edwin S. Kneedler:

And our… yes.

And our–

Stephen G. Breyer:

All right.

Stephen G. Breyer:

Now–

Edwin S. Kneedler:

–position–

Stephen G. Breyer:

–Now take a person just like me except that person has the same vision I have without glasses with glasses.

That person is now read out of the statute too.

Edwin S. Kneedler:

–Well, it… it depends.

That person might have–

Stephen G. Breyer:

He can’t wear glasses.

Edwin S. Kneedler:

–That person may have–

Stephen G. Breyer:

He has a defect because he can’t wear glasses.

There are a lot of people who could be like that.

Edwin S. Kneedler:

–That person–

Stephen G. Breyer:

And wouldn’t those people be handicapped?

Edwin S. Kneedler:

–That person may have… have a–

Stephen G. Breyer:

Disabled.

Edwin S. Kneedler:

–In… in that particular case, but that… but in the ordinary case, a person whose vision is not fully corrected to 20/20 may have a very, very severe uncorrected impairment.

In fact, that may… that may well be the more common situation.

Stephen G. Breyer:

But I don’t know all the disabilities in the world, and it might be that people are disabled in ways where most people can correct, but they can’t.

Edwin S. Kneedler:

Well–

Stephen G. Breyer:

And now I’m concerned about what your definition will do to those people.

Edwin S. Kneedler:

–Well, as to those people, certainly if an employer acts on the basis or… or anyone else covered by the act acts on the basis… treats that person as disabled, then the regarded as prong would… would protect that person just as… as it alternatively protects that person here.

Sandra Day O’Connor:

Why doesn’t the regarded as prong serve as the backdrop and so you… you have no problem looking at the corrected condition of the person?

Edwin S. Kneedler:

Well, the regarded as prong, properly construed, does afford a great deal of protection.

We’re not… we’re not disputing that, although we are quite concerned about the manner in which it has been construed by the lower courts and the way it’s suggested here.

And if I could just address that for a moment, just to make sure our position is understood.

When someone… the allegation here is that United… and the regulatory definition, I should make clear, as to the regarded as is whether the person is treated as disabled by a covered entity, treated as being substantially limited.

In this case the allegation is–

William H. Rehnquist:

What’s the difference between treated as and regarded as?

Edwin S. Kneedler:

–Well, let me explain perhaps by illustrating in this very case.

The allegation is that United said that these petitioners are not qualified for any piloting position with United, and it further alleges that there is no difference between United’s piloting jobs and other commercial piloting jobs.

So, if one looks at the class of piloting jobs, United says, as to those people within that class who we employ, you are not… you are not qualified.

Edwin S. Kneedler:

Therefore, United is treating them as disabled for… for that entire class of piloting jobs.

Antonin Scalia:

Well, that’s not true for that entire class.

The example given in one of the briefs in these… in these cases of, you know, Ted Williams had… had 20/10 vision in both eyes and a… you know, a ball club manager has a perfectly good outfielder whom… whom he could have played instead of Ted Williams, but he chooses Ted Williams.

Edwin S. Kneedler:

Well–

Antonin Scalia:

And this other… this other person is very good and could well be fine in another team.

Now, because he chooses Ted Williams and rejects the other fellow because he has only 20/30, does that mean he’s treating the other… the other fellow as disabled?

I think that’s ridiculous.

Edwin S. Kneedler:

–Well, first of all, in that example, I think the manager is going to choose the person who hits the best and not who has the best eyesight.

[Laughter]

Antonin Scalia:

No.

This is a manner… this is a manager who plays the odds.

It’s when Ted was on the way up.

[Laughter]

Ted was on the way up.

Nobody knew how great he was at the time.

Edwin S. Kneedler:

No, but… but–

Antonin Scalia:

You know the way managers play the odds.

Edwin S. Kneedler:

–No, but… but–

Antonin Scalia:

They’ll put in a left-hand batter and all of that.

Edwin S. Kneedler:

–I’m… I’m… our position isn’t… isn’t that it’s automatically so, but… but our position is that when you have an employer who has jobs that we have to take as a given, according to the allegations in the complaint, are the same as piloting jobs elsewhere, the employer is essentially necessarily making a judgment about the class when he’s making a judgment about the particular employees–

Antonin Scalia:

He’s not.

He’s… that’s just absurd.

It’s just simply not true.

I want Ted Williams.

I’m not saying this other… this other fellow isn’t a perfectly good ball player, but if I have an opportunity to get Ted, I’m going to take Ted.

I’m going to turn this guy down.

Edwin S. Kneedler:

–This came… this case comes up on a motion to dismiss, and… and certainly it is… it is relevant if the employer is making a judgment about what is safe to drive an… or pilot an airplane, which is what this employer is doing–

Sandra Day O’Connor:

Just certain airplanes, global–

Edwin S. Kneedler:

–No.

The allegation in the complaint–

Sandra Day O’Connor:

–piloting positions.

Edwin S. Kneedler:

–The allegation in the complaint is United regarded them as unable to drive any… pilot any airplane.

Sandra Day O’Connor:

Any… any airplane.

Edwin S. Kneedler:

Any airplane.

Sandra Day O’Connor:

Even though they were, in fact, at the time pilots of a regional–

Edwin S. Kneedler:

The regarded as looks at how the… what particular employer treats the employee.

And that is consistent with–

Sandra Day O’Connor:

–And that was the allegation.

Edwin S. Kneedler:

–Yes.

Sandra Day O’Connor:

So, you say a motion to dismiss should not have been granted.

Edwin S. Kneedler:

Yes.

No, we’re certainly not saying that the… that the record… there is no record… establishes that the plaintiffs prevail here.

Sandra Day O’Connor:

And the regulation says the inability to perform a single, particular job, to wit, a pilot for United–

Edwin S. Kneedler:

Right.

It’s–

Sandra Day O’Connor:

–is not–

Edwin S. Kneedler:

–No.

Sandra Day O’Connor:

–a substantial limitation on work.

Edwin S. Kneedler:

A single job doesn’t mean pilot with United.

What… that’s… that’s elaborated upon in the explanatory guidance of the EEOC which serves to distinguish between a specialized, particular job and a… and a class of jobs.

And it doesn’t look to whether it’s one… a job with one employer or a number of employers.

You look at the job content.

You may have… if United had a Concorde and said, you can’t fly the Concorde, that might… that would be the sort of particular, specialized job that the regulation is referring to.

David H. Souter:

So, for purposes of… of the reg, you assume that every other airline will do exactly what this airline is doing for determining whether you meet the class criterion.

Is that–

Edwin S. Kneedler:

In general, yes.

That’s–

Antonin Scalia:

–What happens to myths and stereotypes?

What happens to myths and stereotypes, which was supposed to be the whole purpose of this provision?

Edwin S. Kneedler:

–Well, that is… that is the driving force behind it, but that–

Antonin Scalia:

It isn’t the driving force at all.

United knows very well that other airlines don’t apply this standard.

They’re not following any myth.

They’re just saying, we want to higher standard.

Edwin S. Kneedler:

–It is following a… a stereotype in… in the sense that United is saying we don’t regard you, treat you as qualified to fly our airplanes safely.

That is… or… or as safely as we would like.

Antonin Scalia:

That’s not a stereotype to say that I don’t like this particular type of thing.

A stereotype is… is a view that, you know, a lot of people have, and if… if United had said, you know, all airlines regard you that way, it would be something else.

Thank you, Mr. Kneedler.

Mr. Englert, we’ll hear from you.

Roy T. Englert, Jr.:

Thank you, Mr. Chief Justice, and may it please the Court:

In 26 years of interpretation of the Rehabilitation Act and the ADA, no appellate court has ever held that any person with fully corrected nearsightedness is disabled or handicapped.

Several appellate courts have reached a contrary conclusion and so has the EEOC itself in a decision rendered the very same year the ADA was passed.

Sandra Day O’Connor:

Do we owe deference to the EEOC on this point of how you view it?

Roy T. Englert, Jr.:

On the corrected versus uncorrected–

Sandra Day O’Connor:

Yes.

Roy T. Englert, Jr.:

–absolutely not.

Sandra Day O’Connor:

And why not?

Roy T. Englert, Jr.:

For a number of reasons.

One is the EEOC’s own reversal of position, 180 degree reversal of position from the position taken contemporaneously with the passage of the act.

Another reason is that this position is taken only in interpretative guidance, not in a regulation, which under this Court’s cases is treated quite differently.

A third reason is that the particular language on which the EEOC and petitioners rely was added after the comment period.

Now, that doesn’t invalidate it under the APA and we’ve never argued that it’s invalid under the APA, but it does affect the level of deference under the Skidmore test.

Ruth Bader Ginsburg:

What was the status of that prior case, the Kienast case, in 1990?

Was that… did the EEOC ever explain why it was rejecting the position that it took in that early case?

Roy T. Englert, Jr.:

No.

The Kienast case, as far as I know, has been completely ignored by the EEOC up to and including today.

Stephen G. Breyer:

Would it make sense… earlier this term we decided a case involving a handicapped child.

You know the one I’m thinking of.

Roy T. Englert, Jr.:

Garret F.–

Stephen G. Breyer:

Cedar Rapids.

Roy T. Englert, Jr.:

–Yes.

Stephen G. Breyer:

And I think in there we had some language in respect to the agency might want to deal with this and fully consider it and so forth.

Would that make sense here on the question of when or whether you take corrected or uncorrected into account?

Roy T. Englert, Jr.:

I think not on corrected versus uncorrected, Justice Breyer, because I think the statute is clear.

The phrase… the phrase substantially limits… substantially limits one or more major life activities of such individual–

Stephen G. Breyer:

Yes, but it doesn’t say whether corrected or uncorrected or whether corrected always or some circumstances.

Roy T. Englert, Jr.:

–It says none of those things because that’s not the concepts of the statute.

The concept of the statute is, does it or doesn’t it substantially limit?

Present indicative tense.

Stephen G. Breyer:

All right.

If we get by the present indicative problem, you see, I would be concerned in terms of the statute of many people who might have prosthetic limbs, who might be taking enormous amounts of medicine, who might… you know–

Roy T. Englert, Jr.:

Of course, Justice Breyer.

Stephen G. Breyer:

–be the very victims of the prejudice and myth that the statute is aimed at.

Roy T. Englert, Jr.:

Of course.

Stephen G. Breyer:

And… and they wouldn’t even get in the door.

Roy T. Englert, Jr.:

No, that’s… that’s not correct, respectfully, Justice Breyer.

All it takes to be actually disabled under the Americans with Disabilities Act is a limitation of one or more major life activity… a substantial limitation… excuse me… of one or more major life activity.

It is virtually inconceivable to me that those people would not have even a single limitation on even a single… single substantial limitation on even a single major life activity.

One doesn’t need to–

Stephen G. Breyer:

It would produce enormous litigation on that point, and this is an unusual statute I take it; whereas, our other discrimination statutes are open to everyone to come in and say I’m discriminated… I am a member of the protected class discriminated against, and you know, I’m black, I’m a woman.

I’m discriminated against unjustifiably.

Roy T. Englert, Jr.:

–Well, the key words–

Stephen G. Breyer:

Here you don’t get in the door.

Roy T. Englert, Jr.:

–The key words… excuse me.

Stephen G. Breyer:

You go ahead.

Roy T. Englert, Jr.:

The key words are member of the protected class.

Stephen G. Breyer:

Yes.

Roy T. Englert, Jr.:

This statute is not like title VII which protects black people, white people, men and women, and people who are neither black nor white.

It protects everybody in other words.

Roy T. Englert, Jr.:

This statute defines a protected class and in that regard it’s exactly like the Age Discrimination in Employment Act, not title VII, in limiting its protection to a particular class.

If we have a 39-year-old who is replaced by a 22-year-old with very strong evidence that age was a motivating factor, he has no cause of action under the Age Discrimination in Employment Act because the statute was drawn not to solve the entire societal problem of age discrimination, but to define a protected class and say, once you get through that threshold, then we will make the employer justify its decisions.

Here we have the same thing.

This statute was absolutely not designed to make every employer disregard every physical criterion.

It was designed to protect the disabled from being the victims of physical criteria that can’t be justified.

Stephen G. Breyer:

This… this is what I’m… this is the question I’m trying to get to, which is think of the 44 million.

If I say 44 or 43 million, that calls a whole argument to mind.

Roy T. Englert, Jr.:

Yes.

Stephen G. Breyer:

The following occurred to me, that if you open the door to the myopic people by looking only at uncorrected state, 100 million people will not walk through that door.

Hardly anyone will walk through that door, and the reason that hardly anyone will walk through that door is that discrimination against people who are easily correctable rarely exists.

A handful of employers take things like that into account.

So, it isn’t opening the statute to 150 million people.

It is opening the statute to 43 million people, plus 10,000–

Roy T. Englert, Jr.:

No, Justice Breyer.

I–

Stephen G. Breyer:

–or a few thousand, or at most a million.

And therefore, it is totally consistent–

Roy T. Englert, Jr.:

–I–

Stephen G. Breyer:

–with the legislative history to look at uncorrected state.

All right.

That’s my question.

Roy T. Englert, Jr.:

–I must respectfully disagree with you with respect to both the text of the statute and the legislative history.

With respect to the text of the statute, the finding of 43 million people is that there are 43 million disabled Americans, not that there are 43 million disabled Americans who have been or are likely to be discriminated against, but that there are 43 million disabled Americans.

Having been discriminated against or being likely to be discriminated against is not a criterion by which that number was derived.

With respect to the legislative history, the number can be traced back through Representative Coelho’s comment to the report of the National Council on the Handicapped, On the Threshold of Independence.

And this is a very interesting study that in turn draws on a census study, Disability, Functional Limitation, and Health Insurance Coverage 1984-’85, which asks functional questions, and the functional question it asks about vision is do you have trouble reading ordinary newsprint even with glasses?

We have… for those who are inclined to consider legislative history, we have a very powerful indication that Congress had a view on this subject.

Congress relied on Census Bureau studies, the recommendations of the National Council on the Handicapped, which actually drafted the ADA.

In fact, a draft of the bill is in here and it closely resembles what was in fact first introduced in Congress in 1988.

So, I think both the text and the legislative history don’t allow that distinction, Justice Breyer.

Antonin Scalia:

Mr. Englert, can I get back to deference to EEOC?

I’m… I’m not persuaded by the two reasons you gave for not giving deference.

One is that they’ve changed their position.

So what.

I mean, in the old days, you know, before Chevron we used to put great weight upon a change in position, but I thought that we said in a number of cases the… I mean, that’s… that’s why you elect different Presidents because there’s a lot of wiggle room in the statutes and each administration is… is entitled to wiggle the way it wants to wiggle so long as it’s within the scope of the ambiguity contained in the statute.

Roy T. Englert, Jr.:

Well, but… but first of all, it has to be an ambiguous statute.

Antonin Scalia:

That’s true.

Roy T. Englert, Jr.:

Second–

Antonin Scalia:

That’s a different argument.

Roy T. Englert, Jr.:

–Second, you referred to Chevron deference.

This is not a case calling for Chevron deference.

This is a case calling for Skidmore deference, which is a much lower standard.

Antonin Scalia:

Why?

Why… why not–

Roy T. Englert, Jr.:

Because it’s interpretive guidance.

Antonin Scalia:

–Why not Chevron deference?

Roy T. Englert, Jr.:

Because it’s interpretive guidance and not regulation, and in General Electric Company v. Gilbert, this Court said, EEOC interpretive guidance gets–

Antonin Scalia:

What was the date of General Electric?

Roy T. Englert, Jr.:

–It predated Chevron.

I don’t know the exact date.

Antonin Scalia:

Yes.

I mean, that’s old, old stuff.

I don’t even know Skidmore deference anymore.

It’s not that old.

[Laughter]

Roy T. Englert, Jr.:

Justice Scalia, I… I would suggest that there are different levels of deference.

Whether one refers to them as Skidmore deference and Chevron deference or not, there are different levels of deference for agency pronouncements of different formality.

Antonin Scalia:

Why?

Roy T. Englert, Jr.:

Because–

Antonin Scalia:

We give deference to agencies who have… who… whose position is not enunciated except in litigation so long as it wasn’t made up for this particular case.

Roy T. Englert, Jr.:

–You can give some–

Antonin Scalia:

If an agency has… has consistently taken a certain position in… in legislation, we’ve given deference to it.

Roy T. Englert, Jr.:

–Consistently.

Consistently.

There are levels of deference.

There are gradations of deference.

Consistency is one of the factors to consider.

Antonin Scalia:

What a wonderful world this is.

Roy T. Englert, Jr.:

Formality.

Antonin Scalia:

There are all sorts of gradations?

I mean, if I accept that argument from you, I’m going to accept the argument about, you know, all different levels of myopia that… that your opponent makes.

It’s about just as imaginative.

Roy T. Englert, Jr.:

No.

I think the case law pretty firmly supports–

William H. Rehnquist:

Bragdon certainly suggests… last term talks both about Skidmore deference and about Chevron deference, does it not?

Roy T. Englert, Jr.:

–Yes.

And… and the Court’s opinion, as I read it, said we need not resolve any of these vexing deference questions because here everything points in the same direction.

Sandra Day O’Connor:

Mr. Englert, even if we were to agree with you, that you look at vision in its corrected state under the statute, there is a regarded as feature of the statute.

And this case was resolved on a motion to dismiss, and was there no allegation that the respondent regarded the petitioners as disabled?

Roy T. Englert, Jr.:

Those words were used but there is no allegation sufficient to withstand a motion to dismiss on regarded as.

No.

The… the allegations of the complaint are actually quite interesting.

The petitioners–

Sandra Day O’Connor:

Where… where do you want us to look?

Roy T. Englert, Jr.:

–Pages 24 and 25 of the joint appendix.

In paragraph 38a, which I’ll proceed to read, they… they assert, United asserts that its requirement for uncorrected vision is a rational, job-related, safety requirement.

United thus believes that plaintiffs’ physical condition limits their ability to perform the type of work at issue here.

Well, that’s a very interesting allegation, the type of work at issue here, and they admit in their own complaint that United thinks it’s a rational, job-related safety requirement.

In paragraph… subparagraph e on page 25, on information and belief, United’s policy originally was modeled on military requirements for pilot training, without independent supporting basis.

Well, they want to get into the absence of an independent supporting basis, but they admit where our standard came from.

Roy T. Englert, Jr.:

It didn’t come from myth and stereotype.

It came from lots of other standards for uncorrected vision for pilots.

The Navy requires to this day 20/30 uncorrected vision for pilots.

The Air Force requires 20/50.

Sandra Day O’Connor:

Well, but in d, they allege that United… its position is based on stereotype, myth, or unsubstantiated fears, that they have no data or evidence indicating that the plaintiffs’ visual acuity and use of corrective lenses presents safety concerns.

Roy T. Englert, Jr.:

Well–

Sandra Day O’Connor:

I mean, that’s… that’s also alleged, isn’t it?

Roy T. Englert, Jr.:

–It’s also alleged, but intoning the words, myth, stereotype, and unsubstantiated fears, isn’t enough when we have–

Sandra Day O’Connor:

Well, we don’t require that much on a motion to dismiss–

Roy T. Englert, Jr.:

–No, but–

Sandra Day O’Connor:

–on the face of a complaint.

Roy T. Englert, Jr.:

–The court does not require that much.

But these plaintiffs put in, to their credit, some very honest allegations about where United’s standard came from.

They want to say… their key allegation is United cannot substantiate its 20/100 standard.

But that’s quite a different allegation from saying that United’s standard amounts to regarding everyone who doesn’t have 20/100 or better uncorrected vision as disabled.

Being regarded as not suitable for employment as a pilot for United Air Lines is quite different from being regarded as disabled.

Stephen G. Breyer:

That’s exactly what’s bothering me, that if… you might be right.

If you are right, then the regarded as prong is not really going to be a way to get a lot of disabled people in the door, and if you are right on that, then when you look to the first prong, there might be a lot of deaf people, for example, deaf people with hearing aids, who just can’t even get through the door because they will be said, well, you’re not disabled because that hearing aid works well enough.

And then met with totally irrational, say, reaction on the part of some other employer, they will then lose because that employer just regarded them as not good enough to work here, but perfectly good enough to work somewhere else.

Roy T. Englert, Jr.:

Well–

Stephen G. Breyer:

And it’s that kind of interpretation possibly that’s worrying the EEOC.

Roy T. Englert, Jr.:

–Justice Breyer, to some extent this gets back to our earlier colloquy about defining a protected class and… and then invoking the protections of the statute.

Just as not all age discrimination is outlawed by the ADEA, not every irrational discrimination involving a physical impairment is outlawed by this statute.

Sandra Day O’Connor:

Well, how… how do you read this regarded as prong?

I mean, they’ve alleged that United’s position is based on stereotype, myth, or unsubstantiated fears, and that it blocks plaintiffs from an entire class of employment and so on.

Now, how could they have been more specific in their allegations?

This is a motion to dismiss.

Roy T. Englert, Jr.:

Well, they were… they were–

Sandra Day O’Connor:

Why is this not sufficient under the regarded as?

Roy T. Englert, Jr.:

–Because they were even more specific.

Roy T. Englert, Jr.:

They… the class of employment that they allege was global airline pilot, and even they concede now that that’s not a class of employment.

So, that’s one of the facial defects in their complaint.

Another facial defect in their complaint is that although they talk about myth, fear, and stereotype, their own complaint makes it very clear, Justice O’Connor, that what they are complaining about is that United has not substantiated standards that it derived from somewhere else.

The FAA had a 20/100 standard until 1990… 20/100 uncorrected standard until 1996, and the briefs, by the way are slightly in error.

They say 1994 but it was 1996.

William H. Rehnquist:

Mr. Englert, what in your opinion would qualify?

What would be an example of something that would be… someone who would be regarded as disabled by an employer?

Roy T. Englert, Jr.:

There are many examples.

One of them would be, Mr. Chief Justice, if… if it is rumored that someone is HIV positive but that person is not in fact HIV positive and the employer takes adverse action on that basis.

The employer is regarding that person as disabled.

William H. Rehnquist:

Well, what about someone, say, who has an artificial leg and… but, nonetheless, is perfectly able to drive and can drive as well as… meet any driving test?

Yet, the… the employer says, you know, I just don’t want to take a chance with you.

Is… is he regarding that person as disabled?

Roy T. Englert, Jr.:

He may be.

The first question is, is that person actually disabled?

Because all that person has to show is any one major life activity that is impaired… that is substantially limited by his impairment.

William H. Rehnquist:

Well, but this… this thing works great for him.

I mean, he can do… he can do… he passes all those tests.

And yet, this particular employer says, well, you know, I know you do, but I… I just want really grade A people, not meaning any disrespect to the guy, but I just don’t want to take a chance.

Roy T. Englert, Jr.:

Mr. Chief Justice, in the hypothetical situation where a person with a prosthetic limb actually has no substantial limitation in any major life activity, none at all, I would–

William H. Rehnquist:

Supposing I have an artificial finger and he’s afraid I can’t honk the horn.

[Laughter]

Roy T. Englert, Jr.:

–Well–

William H. Rehnquist:

So that there wouldn’t… wouldn’t be any obvious major disability.

Roy T. Englert, Jr.:

–That does sound like a case for regarded as.

But… but let me… let me suggest why this is not a case for regarded as.

Anthony M. Kennedy:

Yes, and particularly in… in this case, one of the stumbling blocks is that United did treat the applicant in its uncorrected condition for the regarded as prong.

It regarded these people as being uncorrected.

Roy T. Englert, Jr.:

Well, the question is whether it regarded them as having an impairment that substantially limits one or more major life activity.

Anthony M. Kennedy:

That’s… that’s the next question, but you… you admit that it, of course, regarded them in their uncorrected state.

Roy T. Englert, Jr.:

No.

I think it’s sort of a metaphysical statement.

United–

Anthony M. Kennedy:

Well, this whole act is metaphysical.

We’ve been here for 2 days.

[Laughter]

Roy T. Englert, Jr.:

–But… but until 1996, Justice Kennedy, no Government authority had… that I’m aware of had ever said don’t look at people in both their corrected and their uncorrected state.

If these people… if the plaintiffs had corrected to 20/30 but were 20/50 uncorrected, they would be ineligible to be pilots for United or even to get an FAA certificate.

Sandra Day O’Connor:

Okay, but let’s take this case.

They… they are corrected… in their uncorrected, they’re 20 over 100.

With glasses, they’re 20/20.

And United says you aren’t disabled because when you wear glasses, you’re 20/20, and then they say we don’t… but when we regard you as eligible for the job, we’re not going to take you because you’re actually 20 over 100.

Why isn’t that regarding them as disabled?

I think that’s the problem we’re having with your position.

Roy T. Englert, Jr.:

For just the reason that some of your own earlier questions suggested, Justice O’Connor, which is that eliminating someone from a single job is not regarded as.

Everyone agrees on that.

Now, the question is how much do you have to go beyond a single job to make out a regarded as claim, and we… we get into questions about the level of generality of class of jobs.

Sandra Day O’Connor:

Well, we didn’t take that question here in this case, did we?

The single job issue or not?

Roy T. Englert, Jr.:

I believe the grant of cert in this case was unrestricted, Justice O’Connor.

John Paul Stevens:

May… may I ask in that connection if the… if the evidence or the allegation was that United is just like 10 different… all 10 major airlines have the same rule.

Would… would then it satisfy the regarded as job classification for you?

Roy T. Englert, Jr.:

No, not if it’s limited to major airlines and… and not if it’s limited to pilot positions.

Those are two things that–

John Paul Stevens:

You don’t think being ineligible for… an otherwise qualified pilot being denied the opportunity to work as a pilot for the… all the blue ribbon airlines would be a… disabling in a major life activity?

Roy T. Englert, Jr.:

–Not if it’s limited to just the blue ribbons, no.

Justice–

David H. Souter:

Didn’t you quote a reg more or less supporting your position?

What is it… can I just finish this for a second?

No.

David H. Souter:

I’m sorry.

What is it?

They have to be… no airline at all would hire them?

Is that your view?

Roy T. Englert, Jr.:

–No.

They have to be substantially… if they’re relying on substantial limitation of the major life activity of working–

John Paul Stevens:

It’s sort of a market share antitrust test?

Is this what it is?

Or how… how do you define the… when it’s enough in your view?

I just want to get your position.

Roy T. Englert, Jr.:

–They… they must be excluded at… at the minimum from a class of jobs.

Well, the class of jobs–

Roy T. Englert, Jr.:

The EEOC’s own–

John Paul Stevens:

–is being a pilot for all major airlines.

Roy T. Englert, Jr.:

–No.

Your Honor, the EEOC’s own interpretive guidance actually addresses–

John Paul Stevens:

I’m not… I’m interested in your view.

I’m trying to understand your position.

Roy T. Englert, Jr.:

–In my view, being disqualified from a position with every major airline is not enough, and the EEOC–

John Paul Stevens:

But you want us–

–So, it has to be every airline.

You want us to defer to EEOC interpretive guidelines on this–

Roy T. Englert, Jr.:

–No.

Sandra Day O’Connor:

–but not on the other.

It comes from the same interpretive guideline.

Roy T. Englert, Jr.:

Well, you… you shouldn’t defer to it, but I think it is probative, for purposes of argument, to note that the EEOC does give as an example of something that is too narrow to be a class of jobs, commercial airline pilot.

Let me ask the Court… the Court’s indulgence to think about this example.

Doug Flutie is a football player who is short, and he has been a controversial football player throughout his career because a lot of people don’t think you should have short quarterbacks in the NFL.

Now, if these plaintiffs were regarded as disabled because United wouldn’t hire them as pilots, then I would respectfully suggest we have to hold that Doug Flutie is regarded as disabled if the Washington Redskins and every other team in the NFL won’t hire him as a quarterback.

He does not have an impairment, in fact, because being short, especially short compared to pro football players, is not an impairment.

Roy T. Englert, Jr.:

But he is regarded as not suited for employment with that particular employer because of his impairment or because… because of his height, because of his physical characteristic.

Not having an impairment is a classic example of not being disabled and yet being regarded as being disabled.

Mr. Englert, are these–

–How much broader would it have to be?

You say at some point just everybody thinking he’s too short does… does constitute regarded as.

It’s just not hiring in the NFL.

What else is it?

I mean–

Roy T. Englert, Jr.:

Well, in the example, Doug Flutie played in the Canadian football league for many years, and I would suggest that in and of itself, that is enough to defeat a regarded as claim.

But… but, Justice Scalia, my position is broader than that.

Antonin Scalia:

–But what if all… all professional football… all professional football leagues though he was too short?

Roy T. Englert, Jr.:

Then he could be a coach.

[Laughter]

And coach is a position for which he is suited by ability, skill, and training, which is the language in the EEOC’s regulation–

Well–

Roy T. Englert, Jr.:

–its interpretive guidance.

William H. Rehnquist:

–like saying putative pilots could gas planes.

They could but that’s not what they’re trained for.

Roy T. Englert, Jr.:

It is something that is suited to their experience, skills, and abilities which is the language–

Ruth Bader Ginsburg:

Can we go back to eyesight and this simpleminded view of it, without getting into categories of jobs?

Do you agree that these plaintiffs without their glasses would fit the definition substantially… what is it… restricted or limited with regard to sight?

They can’t see in front of them without their glasses.

Would… just let’s take them in their uncorrected state.

Are they… do they fit the definition of being disabled?

Roy T. Englert, Jr.:

–They probably do, but even that’s not crystal clear, Justice Ginsburg, for this reason.

One has to compare them functionally and not just on the basis of numbers, like 20/400 or 20/100, to the average member of the general population.

Ruth Bader Ginsburg:

Yes, well, it is functionally.

They can’t do anything.

They can’t see in front of them.

It isn’t safe for them to go out on the street.

Ruth Bader Ginsburg:

Let’s… but this… this is my basic problem and it’s been brought up in… in the briefs.

You take this person in their corrected state on your analysis, but then the employer says, I don’t accept the correction.

In other words, the question I asked Mr. Kilberg yesterday I think, if these women had had laser surgery so that they could be 20/20, that would be a corrective that United Air Lines would accept.

But isn’t it the case that what’s really going on here is they are disabled if their correction is not accepted and United is not accepting the correction?

Roy T. Englert, Jr.:

No.

No, that’s… that’s quite the wrong way to look at it I would respectfully suggest, Justice Ginsburg.

You cannot make the actual disability prong turn on the employer’s perception.

You can get into the employer’s perception in regarded as, as we have been discussing, but in the actual disability–

Ruth Bader Ginsburg:

That’s why I mean to get into it.

I say, as they are… from the employer’s point of view, people who don’t have glasses to correct their vision–

Roy T. Englert, Jr.:

–But… but that’s… if I may, Justice Ginsburg, that’s not correct either.

The… the vision standard, which is derived from a longstanding FAA standard, from the International Civil Aviation Organization standard, even from an AMA recommendation that the FAA rejected when it changed the rule… the vision standard requires that both corrected and uncorrected be certain levels, 20/20 corrected, 20/100 uncorrected.

So, it’s not a matter of the employer rejecting the corrected measure and saying we have no interest in that.

It’s a matter of the employer saying, our view of what it takes to be as safe a pilot as we believe we should have on this airline is both of these things.

So, to conceive of it as rejecting the correction I think is neither factually accurate nor to me consistent with the way the statute operates.

David H. Souter:

–All right, but… what… it seems to… what your argument is driven by and what your answer to Justice Ginsburg is driven by is you want to make sure that, at the end of the day, United is in a position to hold out, for very good reason, for what it believes is the very safest pilot regardless of what these definitions may be.

You want the airline to be in the position of saying if there’s a 400 hitter out there, I don’t have to hire the 200 hitter.

But isn’t it the case that the airline would be in the position to hold out for the best, just as you want it to do, even if we take your… your opponent’s view of regarded and get these people in under the statute, because if holding out for the very safest, the 400 hitter of airline pilots, is in fact a… a reasonable qualification for an airline or if it is a reasonable approach to the… to the safety and health circuit breaker in the statute, you’d still be able to do that even though these people were regarded in the first instance for getting into court as… as being disabled?

Roy T. Englert, Jr.:

I would hope so, Justice Souter, but I can’t have a lot of confidence that we would win that because the EEOC takes the position that you have to show a direct threat to safety.

I disagree with that position.

But having–

David H. Souter:

Well, it’s… you’re right.

The… the regs refer… I think they finally get down to substantial risk.

And… and you’re quite right.

My question is assuming that what is a substantial risk is a function not only of the likelihood of something going wrong, but the… the extent of disaster if something does go wrong.

So, you’re right.

I’m assuming that on that criterion, you… you would have a reasonable argument for holding out for the… for the 400 hitter–

Roy T. Englert, Jr.:

–And we should win, Justice Souter, but… but the confidence that we will win is what I’m lacking.

Reasonable people disagree about the right standard for pilots.

I… I mentioned that the AMA suggested 20/200, and the FAA rejected that suggestion in favor of looking just at corrected.

Roy T. Englert, Jr.:

Are we going to have a battle of the experts at which United’s… United’s view is put into question because it won’t hire nearsighted pilots?

This… this ultimately is a safety issue.

John Paul Stevens:

–May I ask a question going back to the first issue, the disability?

I know it’s not an eyeglass hypothetical, but I’ve been thinking about it.

Supposing a person needs a drug in order to… to avoid whatever the uncorrected condition is.

He has to take a pill of some kind, and he wants to be a truck driver.

But he can’t afford to buy the pill.

Do you look at him as uncorrected or corrected?

Roy T. Englert, Jr.:

Uncorrected.

John Paul Stevens:

You look at an uncorrected even though if he got the job, he then would be able to pay for the pill.

Roy T. Englert, Jr.:

Yes.

Our position is that the verb substantially limits is meant to make an actual and not a hypothetical–

John Paul Stevens:

And you can take into account the economics of the particular applicant then.

Roy T. Englert, Jr.:

–You take into account the state you find the person in.

Anthony M. Kennedy:

Does a reasonable accommodation require that you buy the pills or by the eyeglasses?

Roy T. Englert, Jr.:

In general, according to the EEOC, personal use items are not reasonable accommodations.

John Paul Stevens:

If these pilots don’t… didn’t have their glasses at the time they applied for a job… they had just been broken.

They couldn’t have… they hadn’t had a chance to make an appointment with the eye doctor.

They’d be uncorrected… they’d be disabled at the time of their application.

Roy T. Englert, Jr.:

No, Justice Stevens.

The… the uniform interpretation of the statute is that the impairment must be of long duration and not temporary for it to qualify as… as a disability.

Stephen G. Breyer:

Is… is it… do we have the only choice?

If we accept your view on eyeglasses corrected, do we then have to say in the case of every other condition, you also look corrected, or is there an intermediate position?

Roy T. Englert, Jr.:

Justice Breyer, I think you do have to accept that position but I… I certainly would not dismiss out of hand the possibility that the Court might think otherwise and that the Court might–

Stephen G. Breyer:

What would be the best intermediate position?

Roy T. Englert, Jr.:

–The best intermediate position would be that corrected versus uncorrected would be based on the legislative history and that such conditions as it appears were meant to be considered in their uncorrected state according to the legislative history should be considered in their uncorrected state.

David H. Souter:

What in particular in the legislative history do you point to?

Because I said yesterday in an argument… and I thought I was right… that the legislative history seems to point in each direction.

The… the House and Senate Judiciary reports don’t seem to be very clear one way or the other.

My recollection is that the… of the two Labor reports, one favored the corrected view, one favored the uncorrected view.

David H. Souter:

What do you point to?

Roy T. Englert, Jr.:

The same sources and they do point in both directions.

And I… I agree with what Justice Scalia I believe suggested yesterday, which is it’s all or nothing.

But if one were to draw an intermediate position, one could derive some of that from the legislative history.

Thank you.

William H. Rehnquist:

Thank you, Mr. Englert.

Mr. Hughes, you have a minute remaining.

Van Aaron Hughes:

Mr. Chief Justice, may it please the Court:

Mr. Englert’s statement that this ultimately is a safety issue speaks volumes about what is at issue in this case.

This Court held in Arline and again in Bragdon that… that parties must produce objective evidence as to whether there is a basis for a safety concern.

We’ve alleged that United perceives my clients to be limited in the ability to fly any aircraft, whether it’s piloting, co-piloting, passenger routes, courier routes.

They can’t do any of it under United’s views.

Many other employers share the same view.

Not all employers.

If they all shared the view, we’d have a good claim under actually disabled, but United regards as… as disabled for that reason, and we’ve alleged that there is no basis for this belief, that it’s based purely on stereotype, that there is no limitation between… there is no relationship between uncorrected vision and a pilot’s safety.

The FAA has always taken the same view.

Even when it had a 20/100 requirement, one could obtain a waiver if… if one’s vision were correctable.

And it’s only stereotype that states otherwise, and whether there’s a basis–

Ruth Bader Ginsburg:

Why does that… where… how do you get that?

When one could just… there wasn’t any trial here.

One could think it could be.

They think glasses fog up.

They get lost.

Contact lenses get lost all the time.

People forget to take pills.

That’s not stereotype, is it?

Van Aaron Hughes:

–Your Honor, we’ve alleged that it is and we believe that’s so because the objective evidence is that there has never been a problem associated with pilots with correctable vision.

United apparently believes the same.

Our understanding is they have pilots in their own fleet with the same vision.

William H. Rehnquist:

Thank you, Mr. Hughes.

Van Aaron Hughes:

Thank you very much.

William H. Rehnquist:

The case is submitted.