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The 9th U.S. Circuit Court of Appeals on Friday took three U.S. Supreme Court decisions about what constitutes a disability and melded them into one ruling. Judge Pamela Rymer wrote the unanimous decision in EEOC v. United Parcel Service Inc., 02 C.D.O.S. 9672, which was hailed by attorneys representing UPS as a boost for employers. A vision impairment that doesn’t affect the major life activity of seeing is not a disability under federal law, the 9th Circuit held. “Some visual impairment does not necessarily mean that the individual is substantially limited in seeing overall; put differently, it does not follow that seeing as a whole is substantially limited just because the individual has a deficiency in some aspect of vision,” wrote Rymer. “The implication is that employers are free to prefer some physical characteristics over others in making job decisions, provided those characteristics do not substantially limit a major life activity,” said Laura Franze, a partner at Akin, Gump, Strauss, Hauer & Feld who filed an amicus brief on behalf of UPS. EEOC v. UPS involved several UPS employees who could only see out of one eye. The employees claimed their one-eyed sight was a disability, and that UPS’s policy of not allowing employees with their condition to have truck-driving positions was discriminatory under the Americans with Disabilities Act and the California Fair Employment and Housing Act. A trial court found that two of the employees were indeed disabled. It also enjoined the company from using its vision protocol unless modified. In concluding that the plaintiffs were not disabled, the 9th Circuit hewed to the higher standard established by the U.S. Supreme Court in Toyota v. Williams, 122 S.Ct. 681 (2002), which came out after the trial court’s EEOC v. UPS ruling. None of the three Supreme Court rulings, which also included Albertson’s Inc. v. Kirkingburg, 527 U.S. 555 (1999), and Sutton v. United Air Lines Inc., 527 U.S. 471 (1999), was exactly on point in the UPS case. “The question here is whether the particular impairment that a particular claimant has substantially limits that individual’s major life activity of seeing,” wrote Rymer. Since the claimants were able to drive, read, use tools and play sports, the court reasoned that the “impairment does not keep either one of them from using his eyesight as most people do for daily life.” Judge Rymer remanded the matter to the lower court to determine whether UPS regarded the individuals as disabled under the higher threshold set by the U.S. Supreme Court. Rymer was joined by Judge William Canby Jr. and Eastern District of Kentucky Judge William Bertelsman, sitting by designation.

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