Vision

Motor Carrier Safety Rules:

Over the last ten years there have been significant developments in the law as applied to commercial truck drivers with disabilities. At Rinke-Noonan, we are proud to have represented a number of disabled drivers, assisting them to obtain Federal Highway Administration waivers so that they can drive commercial vehicles. This panel provides some basic information about developments in the licensing law for disabled commercial truck drivers.

Federal commercial truck driving regulations are subject to section 504, the Rehabilitation Act. At Rinke-Noonan, we have assisted commercial truck drivers with disabilities to obtain commercial licenses from the Federal Highway Administration. Time and time again, our disabled truck driver clients have shown that disabled workers can perform as well or better than their non-disabled peers. They make dedicated and loyal employees. Over and over again, we have found that employers advocate for their own disabled truck driver employees, because they have found them to be superior in safety, superior in dedication and loyalty, and superior in reliability. When we help disabled drivers get on the road we are improving safety, by allowing drivers with superior attitudes to drive commercial trucks.

Jump to:   {Motor Carrier Safety Act} {ADA} {Buck Test}  {Monocular Drivers}

The Rehabilitation Act of 1974 prohibited disability discrimination in federally assisted program. Under the original Act, public and private recipients of federal funds could not discriminate against the disabled in employment. So, for example, a local bus company which received federal financial assistance through the Department of Transportation, was subject to this anti-discrimination requirement. The Rehabilitation Act did not apply to private employers not benefiting from federal programs, nor did it apply to the federal government itself. In 1978, Congress amended the Rehabilitation Act, extending it to the federal government itself. One aspect of the amendments was to require federal agencies to amend their regulations to bring them into harmony with the anti-discrimination provisions of section 504. Under the 1978 amendments, then, federal regulations which discriminate against the disabled are unlawful. Persons who are the victim of federal government discrimination may sue the federal government for damages or other relief in federal district court, because the courts have ruled that section 504 creates an "implied right of action" for civil redress, or in appropriate cases, they may establish their section 504 rights in an administrative proceeding.

Motor Carrier Safety Act of 1984 In 1984, Congress passed the Motor Carrier Safety Act. The Act was designed to harmonize safety regulations from state to state, particularly those regulations which governed safety equipment, such as mud flaps, brakes, trailer size, and so on. In the Act, Congress ordered the Department of Transportation to modernize safety regulations in accordance with modern knowledge. Consequently, the DOT began an excruciatingly slow process of re-examining existing physical requirements for drivers. The agency convened safety panels and conducted studies. At various times, the agency has looked at the requirements for monocular drivers (drivers with a single good eye), limb-impaired drivers, drivers with epilepsy, and drivers with hearing impairments, for example. But, unfortunately, the agency was much more diligent in the area of extending federal safety regulations to the states than it was in the area of complying with the Rehabilitation Act. FHWA began to encourage states to incorporate old discriminatory federal rules before those rules were brought into compliance with the Rehabilitation Act.

Monocular drivers, for example, had long been allowed to drive within individual states. As more states began to apply the federal standard, more and more drivers began to be forced off the road. This was an unintended consequence of the Motor Carrier Safety Act. The FHWA mistakenly believed that it could prohibit disabled drivers from obtaining commercial licenses without any direct evidence that the disabled drivers were unsafe. Instead, the FHWA assumed that drivers had to prove, with statistical evidence, that they were safe. In some circumstances, this created a crazy catch-22 situation: disabled drivers could not drive because there were no statistical studies--but nobody could do statistical studies, because they could not drive.

As a result of several federal studies, it became quite clear that the federal requirement of two good eyes did not have a sound research basis. The agency inched towards a possible change in the regulation, but failed to act.

Americans with Disabilities Act In 1990, Congress passed the the Americans with Disabilities Act, which prohibited private employers from discriminating against disabled employees. During the hearings, Congress became aware that some of the existing safety regulations likely could not stand up under federal anti-discrimination requirements. Commercial trucking concerns contacted the committees and complained that they might be sued by disabled truck drivers; these drivers might contend that the FHWA regulation was unlawful under Section 504, and then might claim that the employer could not use an unlawful regulation as a defense to an ADA lawsuit. The legislative history of the ADA indicates that Congress wanted two things to happen: private employers would be protected against such suits, but the Department of Transportation would modernize the safety regulations to eliminate discriminatory provisions within two years of passage of the ADA.

During this time period, drivers began to seek waivers from the regulations under the Motor Carrier Safety Act's waiver provisions, and to challenge FHWA denials of those waivers. In the Cousins case, the first circuit court of appeals held that disabled drivers could not bring federal district court suits challenging denial, but would instead be required to seek review directly in a federal circuit court of appeals. In Ward v. Skinner, the District of Columbia Circuit upheld a regulation which barred drivers with unstable epilepsy from driving. Presumably, the basis of this decision was that these drivers lacked the ability to predict onset of seizures, and so could not accommodate their disability to reasonable driving requirements. In Buck v Department of Transportation, the District of Columbia Circuit set established a two part test to analyze safety regulations as applied to disabled drivers.

Two Part Buck Test: Under the Supreme Court's decision in Arline, Section 504 requires an employer to make an individualized determination of whether an employee has the functional capability to perform a job. That's because people have unique capabilities, and their disability affects them differently. Section 504 expects employers to afford potential employees an opportunity to show that they have the functional capability of meeting necessary job requirements. How, then, should federal safety regulations apply this requirement to physical requirements. The Buck case begins by recognizing that the Department of Transportation may establish minimum per se functional requirements if it can show that those functional requirements are necessary for any and all drivers. For example, DOT can require drivers to have vision, can require them to be able to hear, and can require them to be able to manipulate controls. If a driver cannot hear, the DOT can refuse to grant a commercial license without an individualized determination, if the DOT has sufficient credible evidence to establish that hearing is a necessary function for commercial truck driving.

On the other hand, Buck tells us that a different standard must apply with respect to impairments which cannot be said to interfere with safe driving in all cases. When the DOT lacks proof that all drivers with a specific impairment can never drive safely, then Buck says that individual drivers must be provided an opportunity to demonstrate that they have the functional capability to drive. A person with hearing in one ear only must be afforded an opportunity to show that the one good ear can hear well enough to drive; a person with one good limb must be afforded an opportunity to show that with proper equipment he can manipulate controls, and so on. A hearing impaired driver must be afforded to show that he can hear well enough to drive with a hearing aid.

Failure to implement the Buck test: Unfortunately, DOT has failed to follow the Buck test in many cases. Instead, for years, the DOT has contended that it can shift the burden of proof to disabled drivers in a very insidious manner. DOT has suggested that disabled drivers cannot demonstrate their functional ability to drive, as suggested by the Buck decision; instead DOT has argued that an individual driver's demonstrated functional ability to drive will not be considered, unless there is overwhelming statistical evidence that thousands of drivers with exactly the same functional impairment can safely drive. This, we suggest is a misreading of section 504, of the Supreme Court's Arline decision, and of the Buck decision as well.

Monocular Drivers. A series of cases brought by Rinke-Noonan clients has advanced the law regarding FHWA safety regulations as applied to monocular drivers. Over the last several decades, it has become increasingly apparent that monocular drivers can safely drive. Following Congressional pressure when the ADA was passed, FHWA decided to conduct an experiment to collect data on whether monocular drivers could safely drive. We believe that the FHWA's decision to conduct an experiment rested upon a flawed understanding of section 504. Section 504 allows individual drivers to demonstrate their individual functional capability to drive: it does not rest the rights of disabled persons upon massive statistical experiments. In fact, advances of disabled individuals into new professions and occupations would have been virtually impossible if this were the test, because the necessary statistical information could never be accumulated: the barring of disabled individuals from the occupation would turn into a self-perpetuating vicious cycle. Lacking proof that binocular vision was necessary to driving, the FHWA simply should have amended the vision regulation to permit monocular drivers to demonstrate their ability to drive.

In the succeeding panel, we discuss the series of monocular vision cases and what they portend for the future.