Labor / Employment, On The Job

Shocking! Justice Is Not Blind, It Just Can’t Tell Red From Green!

What is color blindness, and is it a disability covered under the Americans With Disabilities Act?

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Is justice blind? In fact, have you ever even given a thought to what that means?

Was justice ever blind? In this country? Anywhere at any time?

Surely, one can argue that where a Constitution considered a person of a particular color only 3/5 of a person, justice is hardly blind. More likely gagged. Or maybe just color blind.

Which got me thinking: what is color blindness, and is it a disability covered under the Americans With Disabilities Act (“ADA”)?  People with disabilities have one of the highest unemployment rates in the country, and the ADA was passed to prohibit employment discrimination against people with disabilities.

But is color blindness covered?

Let’s recap what the ADA is and what it covers.

What Is The ADA?

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I wrote before in ATL that “[i]n simple terms, the ADA defines a disability as a condition that impairs a major life function such as walking, breathing, taking care of oneself or working.” The ADA prohibits discrimination against someone with a disability who can perform a job’s “essential functions,” and provides that an employer must make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.”

The ADA was passed to prohibit employment discrimination against people with disabilities — to address the stereotypes, assumptions, myths, and fears that prevented those with medical impairments or disabilities from becoming employed.

And an employer to whom an employee raises the issue of a disability and requests a reasonable accommodation must engage in meaningful discussions with the employee as to the proposed accommodation — an “interactive process.”

Okay, so that’s the law in a nutshell.

Is Blindness Or Vision Impairment Covered By The ADA?

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The EEOC has observed that “[t]he Centers for Disease Control and Prevention (CDC) define ‘vision impairment’ to mean that a person’s eyesight cannot be corrected to a ‘normal level.’ … As a result of changes made by the ADAAA, people who are blind should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of seeing.”

The EEOC also declared that “[i]ndividuals with a vision impairment other than blindness will meet the first part of the ADA’s definition of disability if they can show that they are substantially limited in seeing or another major life activity (e.g., the major bodily function of special sense organs).”  Nonetheless “[p]ersons with vision impairments successfully perform a wide range of jobs and can be dependable workers.”

Okay. So, that’s established with respect to vision impairment: it can be a disability and it can be accommodated.

What About Color Blindness? And What Is It?

The Wall Street Journal noted a few years ago that “32 million Americans—8% of men and 0.5% of women … have some degree of colorblindness.”

The website of the American Academy of Ophthalmology states that “[c]olor blindness occurs when you are unable to see colors in a normal way. Most commonly, color blindness (also known as color deficiency) happens when someone cannot distinguish between certain colors, usually between greens and reds, and occasionally blues.”

Think traffic lights and signs: red and green. Could make life pretty difficult for drivers with color blindness, which is why red is always on the top and green on the bottom. And why red stop signs always have their distinctive shape.

Yep, daily challenges exist for those who suffer, which the rest of us couldn’t even guess.  As the WSJ said, “[d]aily challenges range from not knowing whether meat is fully cooked to … [m]ore serious repercussions [which] include being shut out of a dream job, like piloting planes, because misreading landing-strip lights can have life-or-death consequences.”

So it’s more than just traffic lights.  And it can affect employment.

Is Color Blindness Covered By The ADA?

So, it would seem that color blindness could qualify for ADA coverage in the right factual situation.

Unfortunately, I could find no EEOC claims or cases on color blindness. And lawsuits also were hard to find.

But I found one case — in which there was a jury verdict for the plaintiff (reversed on appeal!).

Back in the late 90s, an applicant for a position as a deputy sheriff failed a required color vision acuity test because he had a red/green vision deficiency which he (surprisingly) was unaware of. He took the exam again and got a 100%!  But he did not tell the examiners that he was wearing specially tinted contact lenses, and when they found out the police department refused to hire him, “contending that the lenses could create other vision problems that would interfere with [his] ability to perform the job.”

The saga continued — the applicant requested “a field test to prove that he could identify colors of traffic lights, cars, clothing and other objects, without the lenses” which, he claimed, he would have had no problem passing. Again, the department refused to hire him — because of its “policy of not administering field tests.”

He sued, claiming that the department “regarded him as being disabled” in violation of the ADA, and that it could have provided him a “reasonable accommodation of “either accepting the successful vision test with the special lenses or giving him a field test.”

He was awarded $307,000 by the jury, which, while acknowledging that color vision acuity was a bona fide job qualification, held nonetheless that the department “regarded him” as disabled, and therefore was required to accommodate him.

Don’t cash that check yet, sir!

On appeal, the court noted that the jury found the applicant was not disabled (to which the court agreed), and the court stated that the trial evidence did not establish that department “regarded him” as disabled — which would have been covered under the ADA.  Therefore, “[h]e cannot claim the protections afforded by the ADA. …”

Oh well, nice try!  Maybe another case will wend its way through the courts …

Takeaway

Justice may indeed be blind, but it can still distinguish colors.

richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.

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