781

November 3, 1998

The Honorable Dianne Feinstein

United States Senate

Washington, D.C. 20510-0504

Dear Senator Feinstein:

I am responding to your letter on behalf of your constituent, xxxxxxxxxxxxxxxxxxxx (Reference xxxxx-xxxxx).

Mr. xxxxxxxxx wrote to you regarding an article by Walter Olson entitled "In the Land of the ADA, the One-Eyed Man Is King." The article appeared in The Wall Street Journal on June 22, 1998. Mr. xxxxxxxxx, based on the Olson article, stated in his letter that the Americans with Disabilities Act (ADA) should be repealed because it was being used to force businesses to hire unqualified personnel. To illustrate his opinion, Mr. xxxxxxxxx referred to a case described in the Olson article and concluded that the ADA was being used to force Aloha Airlines to hire a pilot with monocular vision. Please excuse our delay in responding.

The ADA requires employers to provide qualified persons with disabilities an equal opportunity to benefit from the full range of employment-related opportunities available to others. For instance, the ADA prohibits discrimination in recruitment, hiring, promotions, training, pay, and other privileges of employment. The ADA restricts questions that can be asked about an applicant's disability before a job offer is made, and it requires that employers make reasonable accommodation to the known physical or mental limitations of otherwise qualified persons with disabilities, unless it results in undue hardship. The ADA does not require employers to hire unqualified personnel.

Mr. xxxxxxxxx also stated in his letter that the ADA was being used to force Aloha Airlines to hire a pilot with monocular vision. Although the Aloha Airlines case was mentioned in the Olson article, this lawsuit was brought under the Hawaii state disability rights law and not under the ADA. The Olson article, however, does contain discussions of several ADA cases where individuals with monocular vision successfully challenged their employers' vision standards. For instance, the Olson article referred to a case in which a police officer with monocular vision obtained a judgment against the City of Omaha, as well as a Department of Justice settlement with the City of Pontiac of a case brought by a firefighter with monocular vision. The plaintiffs in both cases had a history of successfully performing their jobs with monocular vision. Officer Doane, the plaintiff in the case against the City of Omaha, performed all the functions of his job successfully and competently for nine years with monocular vision before the police department instituted its blanket policy of refusing to employ police officers with monocular vision. Mr. Henderson, the firefighter in the case against the City of Pontiac, had worked successfully and safely as a firefighter with monocular vision for fourteen years in a neighboring county. In both of these cases, the employers had a blanket policy of excluding from employment all persons with monocular vision regardless of the persons' ability to perform the job safely and effectively.

The ADA generally prohibits physical or mental qualification standards which exclude an entire group of people with a certain disability. The ADA, however, allows an employer to exclude an individual with a disability from a job if it can demonstrate that he or she would pose a "direct threat," that is, a significant risk of substantial harm that cannot be eliminated or reduced through reasonable accommodation. Any determination of a direct threat must be based on an individualized assessment of objective and specific evidence about a particular individual's current ability to perform the essential job functions, and not on general assumptions or speculations about a disability. Therefore, excluding an individual with monocular vision from a job even when he or she has demonstrated an ability to perform it safely and competently is precisely the kind of unwarranted discrimination that the ADA was intended to abolish.

As you requested, I am responding to your correspondence in duplicate. I hope this information is helpful to you in responding to your constituent. Please do not hesitate to contact the Department if we can be of assistance in other matters.

Sincerely,

Bill Lann Lee

Acting Assistant

Attorney General

Civil Rights Division