Judge Posner Reads Sutton For All It's Worth -- And Then Some?

Via Howard Bashman, I see that the Seventh Circuit today issued an opinion in EEOC v. Schneider National, Inc.. The EEOC brought the case on behalf of a truck driver who, after being diagnosed with neurocardiogenic syncope (which causes fainting spells) was dismissed from his job. (The company dismissed him even though he had driven over a million miles for them without an avoidable accident.) The company had previously employed a driver with neurocardiogenic syncope, and he had driven his truck off of a bridge and died. Although there was no way of knowing whether the condition caused his accident, the company decided that it was better safe than sorry and adopted a "zero tolerance" policy toward drivers with the condition -- even though it is a treatable condition and federal safety regulations permit people with the condition to drive over-the-road trucks. It was under the "zero tolerance" policy that the company fired the truck driver.

In an opinion by Judge Posner, the court upheld the grant of summary judgment to the employer. Applying the Supreme Court's decision in Sutton v. United Airlines, the court held that the company did not "regard" the driver's impairment as one that substantially limited major life activities. The company recognized that it might be safe for someone with neurocardiogenic syncope to drive trucks -- as the federal safety regulations permit -- but it decided that it didn't want to take that risk. Judge Posner wrote:

No doubt the risk that a person afflicted with this disorder will faint while driving is small, as otherwise Hoefner wouldn’t be allowed to drive big trucks, as he is, for the trucking company that with full knowledge of his medical history hired him after Schneider fired him. But Schneider is entitled to determine how much risk is too great for it to be willing to take. “[A]n employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment—such as one’s height, build, or singing voice—are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.” Sutton v. United Air Lines, Inc., supra, 527 U.S. at 491.

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But once burned, twice shy. Because of Kupsky’s unfortunate accident, Schneider may be excessively risk averse, as United Air Lines and other airlines (Sutton v. United Air Lines, Inc., 130 F.3d 893, 903-04 (10th Cir. 1997), aff’d 527 U.S. 471 (1999)) may be in refusing to hire pilots who do not have at least 20-100 uncorrected vision. 527 U.S. at 475-76. But as there is no evidence that Schneider exaggerates the severity of Hoefner’s condition and the risk he poses as a driver, there is no violation of the Americans with Disabilities Act. Cassimy v. Board of Education, 461 F.3d 932, 937 (7th Cir. 2006); Ogborn v. United Food & Commercial Workers Union, 305 F.3d 763, 767-68 (7th Cir. 2002); Katz v. City Metal Co., 87 F.3d 26, 32-33 (1st Cir. 1996).

The EEOC has confused risk with risk aversion. Two companies might each correctly believe that the risk of a particular type of accident was 1 in 10,000, yet one company, perhaps because it was small, financially fragile, owned by a trust, or as in this case had had an experience of the risk materializing, might be unwilling to assume the risk. That would be a decision irrelevant to liability under the Americans with Disabilities Act, even if that company’s degree of risk aversion was “unique” in its industry. EEOC v. J.B. Hunt Transport, Inc., 321 F.3d 69, 76 (2d Cir. 2003).

The court went on to hold that the EEOC would lose in any event under Sutton, because at most the company thought that the driver's condition prevented him from driving over-the-road trucks, and an inability to drive over-the-road trucks is not a substantial limitation in a major life activity.

The second point seems to me a reasonable reading of Sutton and Murphy -- though there is much to criticize in Murphy, in particular, on this point. But, to the extent it is a separate holding -- and the court's decision seems to say that it is -- the discussion of risk-averseness seems to me quite problematic. Judge Posner seems to be saying that, so long as an employer knows it's acting on the basis of irrational prejudice or fear, it is free to discriminate against people with impairments that aren't really limiting all it wants. An employer can say, "I know that a person with medicated epilepsy can effectively teach, but it freaks me out that there's this fraction-of-a-percent chance that he will have a seizure in the middle of class. Let the other schools hire him -- I know they will, and so much the worse for me, but that's just how I feel." Is it really sensible to conclude that the ADA has nothing to say about such a decision?