No. 95-30756 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT CORTEZ T. BRIDGES, Plaintiff-Appellant, v. CITY OF BOSSIER CITY, Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE DEVAL L. PATRICK Assistant Attorney General JESSICA DUNSAY SILVER SAMUEL R. BAGENSTOS Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-2174 TABLE OF CONTENTS PAGE INTEREST OF THE UNITED STATES . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . 2 INTRODUCTION AND SUMMARY OF ARGUMENT . . . . . . . . . . . 5 ARGUMENT: THE DISTRICT COURT ERRED IN CONCLUDING THAT THE CITY DID NOT "REGARD" BRIDGES AS HAVING A DISABILITY . . . . 8 A. Where An Employer Rejects An Applicant Because Of An Assumption About The Limiting Effects Of An Impairment, A Presumption Arises That The Employer "Regards" The Applicant As Substantially Limited In A Major Life Activity . . . . . . . . . . . . . . . . . . . .9 B. The City "Regarded" Bridges As Having A Substantially Limiting Impairment . . . . . . . . 14 1. The city "regarded" Bridges as disqualified from the "class" of firefighting jobs . . . . . . . . . . . . . . . 15 2. Because the city "regarded" Bridges as disqualified from a "class of jobs," the Court need not decide whether it also "regarded" him as disqualified from a broad range of jobs in various classes . . . . . . . . . . . . 19 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 20 TABLE OF AUTHORITIES CASES: Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993), cert. denied, 114 S. Ct. 1386 (1994) . . . . . . . . . 5, 18 Cook v. Rhode Island, Dep't of Mental Health, Retardation, and Hosps., 10 F.3d 17 (1st Cir. 1993) . . . . . . . . . .18 - i - 01-05342 CASES (continued): PAGE Daley v. Koch, 892 F.2d 212 (2d Cir. 1989) . . . . . . . . 17 Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . 10, 16 E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088 (D. Haw. 1980) . . . . . . . . . . . . . . . . . . . .16, 18 Fitzpatrick v. City of Atlanta, 2 F.3d 112 (11th Cir. 1993) . . . . . . . . . . . . . . . . . . . . .17 Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986) . . . . . . .19 Gupton v. Virginia, 14 F.3d 203 (4th Cir.), cert. denied, 115 S. Ct. 59 (1994) . . . . . . . . . . . . . . .17 Heilweil v. Mount Sinai Hosp., 32 F.3d 718 (2d Cir. 1994), cert. denied, 115 S. Ct. 1095 (1995) . . . . . . . . . . .19 Jasany v. United States Postal Serv., 755 F.2d 1244 (6th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . 19 School Board of Nassau County v. Arline, 480 U.S. 273 (1987) . . . . . . . . . . . . . . . . . . . . . . .5, 6, 14 Welsh v. City of Tulsa, 977 F.2d 1415 (10th Cir. 1992) . . .18 STATUTES AND REGULATIONS: Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (1990), codified at 42 U.S.C. 12101 et seq. . . . . . . . . . . . . . . . . . . . .passim 42 U.S.C. 12102(2) . . . . . . . . . . . . . . . . . 8 42 U.S.C. 12102(2)(C) . . . . . . . . . . . . . . . .5 Title I, 42 U.S.C. 12111 et seq. . . . . . . . . . . . 1 42 U.S.C. 12111(8) . . . . . . . . . . . . . . . . . 4 Section 102, 42 U.S.C. 12112(a) . . . . . . . . . 4, 8 29 C.F.R. 1630.2(h)(1) (1995) . . . . . . . . . . . . . . . 9 29 C.F.R. 1630.2(i) (1995) . . . . . . . . . . . . . . . . . 9 29 C.F.R. 1630.2(j)(3)(i) (1995) . . . . . . . 10, 11, 15, 16 29 C.F.R. 1630.2(j)(3)(ii)(B) (1995) . . . . . . . . . 10, 15 29 C.F.R. 1630.2(j)(3)(ii)(C) (1995) . . . . . . . . . . . 11 29 C.F.R. 1630.2(l)(1) (1995) . . . . . . . . . . . . . . . 9 29 C.F.R. 1630.2(l)(3) (1995) . . . . . . . . . . . . . . .. 9 29 C.F.R. Pt. 1630, App.  1630.2(j) (1995) . . . . . . passim - ii - 01-05343 REGULATIONS (continued): PAGE 29 C.F.R. Pt. 1630, App.  1630.2(l) . . . . . . . . . . 12, 18 LEGISLATIVE HISTORY: H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. (1990) . 6, 14 H.R. Rep. No. 485, Pt. 3, 101st Cong., 2d Sess. (1990) . . . . . . . . . . . . . . . 6, 12, 13, 18 MISCELLANEOUS: U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook (1994) . . . . . . . . . . . 17 U.S. Office of Personnel Mgt., Handbook of Occupational Groups and Series (1993) . . . . . . . . . . . . . . . . . 17 U.S. Dep't of Commrce, Economics and Statistics Admin., Bureau of the Census, 1990 Census of Population and Housing: Classified Index of Industries and Occupations (1992) . . . . . . . . . . . . . . . . . . . . 17 - iii - 01-05344 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-30756 CORTEZ T. BRIDGES, Plaintiff-Appellant, v. CITY OF BOSSIER CITY, Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE INTEREST OF THE UNITED STATES This case involves the construction of the term "disability" in the Americans with Disabilities Act of 1990, Pub. L. No. 101- 336, 104 Stat. 327 (1990), codified at 42 U.S.C. 12101 et seq.. It arises in the context of an employment discrimination suit against a local government under Title I of the Act, 42 U.S.C. 12111 et seq.. The Attorney General has principal authority to enforce the provisions of Title I against public employers, and this Court's decision could have a significant effect on those enforcement responsibilities. STATEMENT OF THE ISSUE Whether an individual who is refused employment as a fire- fighter because he suffers from a mild form of hemophilia is "regarded as having" a disability and therefore protected by the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. (ADA). 01-05345 - 2 - STATEMENT OF THE CASE 1. This case arises under the employment provisions of the Americans with Disabilities Act. It involves the Bossier City Fire Department's rejection of Cortez Bridges's application for employment as a firefighter. Bridges, the plaintiff, suffers from Hemophilia B, a deficiency in the blood clotting factor known as Factor IX (Memo. R. 1).1/ Physicians classify cases of hemophilia into three groups based on their seriousness: severe, moderate, and mild. Id. at 2. Bridges has a mild case, which is the rarest form of hemophilia. Ibid. "Mild hemophiliacs, unlike severe hemophiliacs, do not suffer from spontaneous bleeding -- bleeding in the joints resulting from no apparent trauma." Ibid. Although individuals with mild hemophilia do "face a risk of increased bleeding secondary to trauma," id. at 3, the district court found no persuasive evidence that Bridges had ever suffered excess bleeding as a result of his condition. See id. at 3-4. The district court found that Bridges "has led a normal, active life, apparently unhindered by his blood condition. He participated in athletics and played in the school band through- out high school." Id. at 1-2. During junior college, Bridges became certified as an emergency medical technician (EMT); he currently works as an EMT at a local casino. Id. at 2. He also serves in the National Guard as the commander of a Bradley 1/"Memo. R. " refers to page numbers in the district court's Memorandum Ruling of June 30, 1995. " Tr. " refers to pages in the transcript of trial proceedings for the dates indicated. "R. " refers to entries on the district court's docket sheet. 01-05346 - 3 - fighting vehicle. Ibid. "As a National Guard member, he has successfully completed the initial boot camp and successive summer training exercises without incident." Ibid. And Bridges has twice had surgery for unrelated conditions; on neither occasion did he bleed excessively. Id. at 3-4. As the plain- tiff's medical expert testified, Bridges's medical history indicates that any trauma sufficient to cause Bridges to suffer a bleeding incident would also be sufficient to require medical attention in most other people. 5/10/95 Tr. 238. After completing his EMT training in 1992, Bridges desired to become a paramedic. Id. at 19-20. In the Bossier City Fire Department, all paramedics must first serve as firefighters. Accordingly, Bridges applied in January of 1992 to become a firefighter. Id. at 20. He passed the civil service examination in May of 1992. Id. at 21. After passing a drug test and a polygraph test, Bridges was extended an offer of employment beginning July 15, 1992. Id. at 22-24. However, that offer was conditional on his passing a physical examination. Id. at 24. At the examination, Bridges informed the examining physician of his mild hemophilia; the doctor recommended that Bridges not be hired. Id. at 25-36. The city followed the physician's recom- mendation and withdrew its conditional offer of employment. Id. at 34-36. As the district court found, "[t]he City rejected plaintiff because it feared his condition rendered him a danger to himself and others if employed as a fire fighter. At trial, the City repeatedly cited his potential for excess bleeding 01-05347 - 4 - secondary to trauma as the source of this danger." Memo. R. 1. 2. On March 2, 1994, Bridges initiated this action (R. 1: Complaint). His complaint alleged that the city's withdrawal of its employment offer violated the Americans with Disabilities Act. Section 102 of the ADA prohibits discrimination in the terms and conditions of employment "against a qualified individu- al with a disability because of the disability." 42 U.S.C. 12112(a). Bridges contended that he was a "qualified individual" because he could perform the essential functions of the position of firefighter, see 42 U.S.C. 12111(8), and that he had a "dis- ability" because the city regarded him as being disabled. After a three-day bench trial, the district court granted judgment for the city on June 30, 1995 (Memo. R. 8). The court concluded that the city did not regard Bridges as having a "disability" within the meaning of the ADA. Id. at 5-8. Because "[t]he legal definition of disability * * * [turns] on whether the City regarded plaintiff as having a substantially limiting impairment," the district court concluded that Bridges must prove that "the City acted because it considered his condition substan- tially limiting." Id. at 6-7 (emphasis in original). The court held that Bridges had failed to meet that burden: "The evidence demonstrated that the City acted because it considered his condition prevented plaintiff from working in the one position he sought, firefighter." Id. at 7. While the city apparently considered Bridges to be disqualified "from employment in other fields with extremely high exposure to trauma," such employment 01-05348 - 5 - would constitute only "a narrow range of jobs." Ibid. Thus, in the district court's view, the city did not view Bridges's hemophilia as imposing a substantial limitation on his "ability to work in general." Ibid. INTRODUCTION AND SUMMARY OF ARGUMENT The Americans with Disabilities Act prohibits employers from rejecting applicants because of untested assumptions about the limiting effect of physical or mental conditions. It instead requires them to make individualized determinations of an ap- plicant's condition and the extent to which that condition limits the applicant from working in the job at issue. To this end, the Act protects not only those individuals who actually have a disability, but also persons who are "regarded" by employers as having a disability. 42 U.S.C. 12102(2)(C). The ADA provision protecting individuals who are "regarded as" disabled was taken from an identical provision in the Reha- bilitation Act. See Chandler v. City of Dallas, 2 F.3d 1385, 1391 & n.18 (5th Cir. 1993), cert. denied, 114 S. Ct. 1386 (1994). In School Board of Nassau County v. Arline, 480 U.S. 273 (1987), the Supreme Court explained Congress's purpose in adding the "regarded as" protection: by adding that provision, "Con- gress acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment." Id. at 284. In passing the ADA, Congress reaffirmed Arline's holding that "discrimination on the basis of mythology" was "precisely 01-05349 - 7 - philia as preventing him from performing only a "narrow range" of jobs involving routine exposure to extreme trauma. The district court's conclusion was error. The city reject- ed Bridges because of an untested assumption that persons with hemophilia cannot perform the job of firefighter without endan- gering themselves and others. When an employer rejects an applicant because of such a stereotype, a presumption arises that the employer regards the applicant as substantially limited in a major life activity. As Congress recognized when it enacted the ADA, an employer who relies on an assumption that a physical or mental condition disqualifies an individual from a particular job is likely to apply a similar stereotype to conclude that the person is disqualified from a range of other jobs. Moreover, the city "regarded" Bridges as substantially limited in working if it perceived him as significantly restrict- ed in the ability to perform either a "class of jobs" or a "broad range of jobs in various classes." Bridges clearly satisfies the first prong: "class of jobs." The record demonstrates that the city considered Bridges's hemophilia as disqualifying him for the entire "class" of firefighting jobs. Under the city's policy, persons with hemophilia are uniformly excluded from any fire- fighting position. By determining that his condition disquali- fied him from any job in his chosen field of firefighting -- indeed, any position as an emergency medical technician or paramedic as well -- the city "regarded" Bridges as substantially limited in the ability to work. Because Bridges satisfies the 01-05350 - 8 - "class of jobs" prong, this Court need not consider whether the city also perceived him as excluded from a "broad range of jobs in various classes." ARGUMENT THE DISTRICT COURT ERRED IN CONCLUDING THAT THE CITY DID NOT "REGARD" BRIDGES AS HAVING A DISABILITY Title I of the ADA protects "qualified individual[s] with a disability" from discrimination in employment. 42 U.S.C. 12112(a). Under the Act, "disability" has two core aspects: (1) a physical or mental "impairment"; and (2) substantial limitation of a "major life activity." The ADA defines "disability" as follows (42 U.S.C. 12102(2)): The term "disability" means, with respect to an individual -- (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. This case involves the third prong of the definition of disabili- ty: "being regarded as having such an impairment." Although the city rejected Bridges because of an assumption that any person with hemophilia is disqualified for any firefighter position, the district court concluded that the city did not "regard" Bridges as having a disability. In the court's view, "the City acted because it considered his condition prevented plaintiff from working in the one position he sought, firefighter." Memo. R. 7. Therefore, the district court concluded, the city did not per- ceive Bridges's hemophilia as "substantially limiting." Ibid. That conclusion was error. A plaintiff can demonstrate that 01-05351 - 9 - he or she is "regarded as" having a disability by showing that he or she "[h]as a physical or mental impairment that does not substantially limit major life activities but is treated by [an employer] as constituting such limitation." 29 C.F.R. 1630.2(1)(1) (1995). Bridges satisfies this test. Bridges's hemophilia is clearly a physical "impairment." See 29 C.F.R. 1630.2(h)(1) (1995) ("impairment" includes any physiological disorder affecting, inter alia, hemic and lymphatic systems). 2/ Moreover, it is clear from the record and the district court's findings that the city treated that impairment as a substantial limitation on a major life activity. A. Where An Employer Rejects An Applicant Because Of An Assumption About The Limiting Effects Of An Impairment, A Presumption Arises That The Employer "Regards" The Applicant As Substantially Limited In A Major Life Activity 1. Major life activities include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. 1630.2(i) (1995). Here, both the parties and the district court focused on the major life activity of "working." 3/ An individual is sub- 2/Although the error did not affect the substance of its analy- sis, the district court incorrectly proceeded under 29 C.F.R. 1630.2(1)(3) (1995), which allows a plaintiff to demonstrate that an employer treated him or her as having a substantially limiting impairment although the plaintiff actually has no impairment whatsoever. See Memo. R. 6. Because hemophilia clearly consti- tutes an "impairment," the essential question before the district court was whether the city regarded that impairment as substan- tially limiting. 3/That focus may not have been appropriate in this case. Both this Court's case law and the EEOC's Interpretive Guidance dictate that a court should "first examine whether [the plain- (continued...) 01-05352 - 10 - stantially limited in working if he or she is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. 1630.2(j)(3)(i) (1995). There are two alternative means for a plaintiff to prove that he or she is substantially limited in working. First, the plaintiff can show that he or she is significantly restricted in the ability to perform "a class of jobs." Ibid. That showing requires consideration of "[t]he job from which the individual has been disqualified because of an impairment, and the number and types of [other] jobs utilizing similar training, knowledge, skills or abilities * * * from which the individual is also disqualified because of the impairment." 29 C.F.R. 1630.2(j)(3)(ii)(B) (1995). Alternatively, the plaintiff can demonstrate a significant restriction in the ability to perform 3/(...continued) tiff's] impairment substantially limits a major life activity other than working." Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 & n.10 (5th Cir. 1995). Only if the court finds that the plaintiff is not substantially limited in any other major life activity should it proceed to consider the major life activity of working. See 29 C.F.R. Pt. 1630, App.  1630.2(j) (1995). Here, the evidence that the city considered Bridges to be at risk of excess bleeding secondary to trauma might well support a conclusion that the city regarded him as substantially limited in life activities other than working. This Court need not decide that question, however, for the record developed in the district court makes clear that the city regarded Bridges as substantially limited in working. 01-05353 - 11 - "a broad range of jobs in various classes." 29 C.F.R. 1630.2(j)(3)(i) (1995). That showing requires consideration of "[t]he job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities * * * from which the individual is also disqualified because of the impairment." 29 C.F.R. 1630.2(j)(3)(ii)(C) (1995) (emphasis added). Either showing is sufficient to establish a substantial limitation. 2. Here, of course, Bridges did not seek to prove that he actually was substantially limited in the major life activity of working. He instead contended that the city "regarded" him as such. In a "regarded as" case, the requirements of proof must reflect the fact that it is the employer's perception -- and not the employee's actual limitation -- that is at issue. In partic- ular, it is unrealistic to expect that an employer will consider whether an applicant is qualified for any job other than that for which he or she applied. An employer thus cannot successfully defend against a claim that it "regarded" an applicant as dis- abled merely by asserting that it did not consider the applicant unqualified for any other job. Rather, where an employer refuses to hire an individual because of a stereotypical assumption about the limiting effects of an impairment, one can reasonably assume that the employer, if faced with the question, would have applied the same stereotypes to consider the individual disqualified for a range of jobs. As the EEOC's Interpretive Guidance explains, 01-05354 - 12 - "if an individual can show that an employer or other covered entity made an employment decision because of a perception of disability based on 'myth, fear or stereotype,' the individual will satisfy the 'regarded as' part of the definition of disabil- ity." 29 C.F.R. Pt. 1630, App.  1630.2(1) (1995); see also H.R. Rep. No. 485, Pt. 3, supra, at 30 ("Thus, a person who is reject- ed from a job because of the myths, fears and stereotypes associ- ated with disabilities would be covered under this third test, whether or not the employer's perception was shared by others in the field and whether or not the person's physical or mental condition would be considered a disability under the first or second part of the definition."). There are three principal reasons for presuming that an employer who deems an individual disqualified for a particular job because of a stereotype about disability would apply a similar assumption to consider the individual disqualified for a range of jobs. First, Congress recognized that the same stereo- types that lead to exclusion from a single employment opportunity often lead to exclusion from a range of other opportunities. See H.R. Rep. No. 485, Pt. 3, supra, at 30 (noting that "[s]ociologists have identified common barriers that frequently result in employers excluding disabled persons"); accord 29 C.F.R. Pt. 1630, App.  1630.2(1) (1995). Thus, "if a person is disqualified on the basis of an actual or perceived physical or mental condition, and the employer can articulate no legitimate job-related reason for the rejection, a perceived concern about 01-05355 - 13 - employing persons with disabilities could be inferred and the plaintiff would qualify for coverage under the 'regarded as' test." H.R. Rep. No. 485, Pt. 3, supra, at 30-31. Second, it is unfair to put an individual who has been rejected for employment because of a physical or mental impair- ment to the difficult factual burden of proving the precise extent to which the employer thought he or she was limited in the ability to work. Even in an "actual disability" case, where the plaintiff must demonstrate that an impairment in fact disquali- fies him or her from holding a class of jobs or a broad range of jobs in various classes, the plaintiff need not make "an onerous evidentiary showing." 29 C.F.R. Pt. 1630, App.  1630.2(j) (1995). In a "regarded as" case, where the plaintiff must prove only that the employer perceived him or her as disabled, the required showing should be even less onerous -- particularly where, as here, the employer admittedly took adverse action because of a perceived impairment. Because evidence of what the employer perceived is peculiarly within the possession of the employer -- and because the employer's perception may well be irrational -- a plaintiff should not be forced to provide a detailed rendering of the jobs for which the employer believed him or her to be disqualified. Third, and most important, the essential purpose of the "regarded as" provision is to eliminate discrimination on the basis of the "accumulated myths and fears about disability and disease." Arline, 480 U.S. at 284. The ADA "is premised on the 01-05356 - 14 - obligation of employers to consider people with disabilities as individuals and to avoid prejudging what an applicant or employee can or cannot do on the basis of that individual's appearance or any other easily identifiable characteristic, or on a precon- ceived and often erroneous judgment about an individual's capa- bilities based on 'labeling' of that person as having a particu- lar kind of disability." H.R. Rep. No. 485, Pt. 2, supra, at 58. An employer who rejects an individual's job application because of an untested assumption about the limitations imposed by the applicant's physical or mental impairment is violating the central command to treat applicants based on their individual abilities. Such a rejection is sufficient to demonstrate that the employer "regarded" the applicant as disabled and to subject the employment decision to coverage under the ADA. B. The City "Regarded" Bridges As Having A Substantially Limiting Impairment The district court's factual findings make clear that the city rejected Bridges because it erroneously believed that his hemophilia rendered him unable to perform the job of firefighter. See Memo. R. 1. Rather than treating Bridges as an individual and determining whether his mild case of hemophilia would prevent him from performing the job, the city made a categorical decision that any person with any type of hemophilia would be disqualified for any firefighting position. That type of stereotyping itself warrants the presumption that the city "regarded" hemophilia as substantially limiting a major life activity. Even apart from that presumption, however, Bridges has 01-05357 - 15 - established that the city "regarded" his hemophilia as substan- tially limiting his ability to work. As noted, an individual can be substantially limited in working by being "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes." 29 C.F.R. 1630.2(j)(3)(i) (1995) (emphasis added). The district court found that the city regarded Bridges as disqualified from any firefighting position -- indeed any position "with extremely high exposure to trauma." Memo. R. 7. And it is undisputed that the city's decision also excluded Bridges from any position as an emergency medical technician or paramedic within the fire depart- ment. Those facts dictate the conclusion that the city "regard- ed" Bridges as unable to perform an entire "class of jobs" -- the "class" of firefighting jobs. The city therefore "regarded" Bridges as disabled, whether or not it also considered him disqualified for "a broad range of jobs in various classes." 1. The city "regarded" Bridges as disqualified from the "class" of firefighting jobs The applicable regulations define a "class of jobs" as a group of jobs requiring the same "training, knowledge, skills or abilities." 29 C.F.R. 1630.2(j)(3)(ii)(B) (1995). A person who is significantly restricted in the ability to perform only one position is not substantially limited in working. 4/ Nor is a 4/29 C.F.R. Pt. 1630, App.  1630.2(j) (1995) (noting that "an individual who cannot be a commercial airline pilot because of a minor vision impairment, but who can be a commercial airline co- pilot or a pilot for a courier service, would not be substan- tially limited in the major life activity of working"). 01-05358 - 16 - person who is unable to perform in a "specialized job or profes- sion requiring extraordinary skill, prowess or talent." 29 C.F.R. Pt. 1630, App.  1630.2(j) (1995). Rather, to be signifi- cantly restricted in the ability to perform a "class" of jobs, an individual must be restricted in employment in an entire field. See, e.g., Dutcher, 53 F.3d at 727 (plaintiff's disability did not prevent her from performing the "entire class" of welding jobs; it only affected "functioning in a welding position requir- ing substantial climbing"). Because the determination whether an individual is excluded from a class of jobs draws content from an inquiry into the individual's "job expectations and training," E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1101 (D. Haw. 1980), an individual is substantially limited in working if he or she is significantly restricted in the ability to work in his or her "chosen field." Id. at 1099. As the E.E. Black court explained (ibid.): A person, for example, who has obtained a graduate degree in chemistry, and is then turned down for a chemist's job because of an impairment, is not likely to be heartened by the news that he can still be a streetcar conductor, an attorney or a forest ranger. A person who is disqualified from employment in his chosen field has a substantial handicap to employment, and is substantially limited in one of his major life activities. The EEOC regulations adopt this analysis, see 29 C.F.R. 1630.2(j)(3)(i) (1995) (plaintiff's restrictions must be "com- pared to the average person having comparable training, skills 01-05359 - 17 - and abilities"), as have several courts.5/ Here, it is clear that the city regarded Bridges's hemophil- ia as disqualifying him from working in his "chosen field."6/ It is undisputed that Bridges had successfully completed training to be an emergency medical technician and that he aspired and expected to become a paramedic. 5/10/95 Tr. 19-20. To perform either of these jobs, the city required that Bridges first become a firefighter.7/ But the city regarded Bridges as unqualified for any line position within the fire department simply because of his hemophilia. 5/12/95 Tr. 93-95. Therefore, the city "regarded" Bridges's hemophilia as a substantial limitation on his ability to work.8/ 5/See, e.g., Gupton v. Virginia, 14 F.3d 203, 205 (4th Cir.) (question is whether plaintiff was "foreclosed * * * generally from obtaining jobs in her field"), cert. denied, 115 S. Ct. 59 (1994); cf. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1126 (11th Cir. 1993) ("probable" that individuals with skin condition were substantially limited in working where fire department's "no beard" rule prevented them from working as firefighters); but see Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989) (dicta stating that "[b]eing declared unsuitable for the particular position of police officer is not a substantial limitation of a major life activity"). 6/Moreover, several recognized job classification schemes list firefighting occupations as a separate classification. See U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook 297-298 (1994); U.S. Office of Personnel Mgt., Handbook of Occupational Groups and Series 13 (1993); U.S. Dep't of Commerce, Economics and Statistics Admin., Bureau of the Census, 1990 Census of Population and Housing: Classified Index of Industries and Occupations xviii (1992). 7/In Bossier City, all EMTs and paramedics must also train and serve as firefighters. 5/10/95 Tr. 101; 5/12/95 Tr. 84, 93-95. 8/It is true that not all employers would necessarily regard Bridges's hemophilia as disqualifying for all firefighting, (continued...) 01-05360 - 18 - In reaching a contrary conclusion, the district court relied principally on this Court's decision in Chandler, supra. There, this Court held that "[a]n employer's belief that an employee is unable to perform one task with an adequate safety margin does not establish per se that the employer regards the employee as having a substantial limitation on his ability to work in gener- al." Chandler, 2 F.3d at 1393. In Chandler, the employer recognized the plaintiffs' "ability to perform most of the duties associated with their respective positions." Ibid. It accurate- ly believed them to be disqualified from only one particular task of their jobs: driving. Ibid. A variety of courts have simi- larly held that an individual is not substantially limited in working merely because he cannot perform a specific task or work 8/(...continued) paramedic, and EMT positions. Indeed, as the district court noted, Bridges had worked as an EMT at a local casino "since his rejection by the City." Memo. R. 7-8. But the relevant question is whether the city treated Bridges's hemophilia as a substantial limitation on his ability to work. Whether Bridges's impairment actually imposed such a substantial limitation, or whether other employers perceived the impairment as substantially limiting, has no bearing on this question. Where an employer refuses to hire an individual because of a perceived impairment, a legal presump- tion arises "that all employers offering the same job or similar jobs would use the same requirement or screening process." E.E. Black, Ltd., 497 F. Supp. at 1100; accord Cook v. Rhode Island, Dep't of Mental Health, Retardation, and Hosps., 10 F.3d 17, 25- 26 (1st Cir. 1993). Congress endorsed this rule in the legisla- tive history to the ADA. See H.R. Rep. No. 485, Pt. 3, supra, at 30 (person who is rejected for a job on the basis of a perceived disability is "regarded as" disabled "whether or not the employ- er's perception was shared by others in the field"); accord 29 C.F.R. Pt. 1630 App.  1630.2(1) (1995); but see Welsh v. City of Tulsa, 977 F.2d 1415, 1419 (10th Cir. 1992) ("[Plaintiff's] assumption that other fire departments would also misapply the standards regarding employment of firefighters so as to disquali- fy him is only speculation."). For the reasons stated, Welsh is inconsistent with Congress's intent in enacting the ADA. 01-05361 - 19 - at a specific job site.9/ Here, however, the employer's reasons for disqualifying the plaintiff did not relate to specific tasks or a specific job site. Rather, the city acted on the basis of an unfounded presumption that Bridges's hemophilia disqualified him from the entire class of firefighting jobs. See Memo. R. 1; 5/11/95 P.M. Tr. 39; 5/12/95 Tr. 84, 93-95. That categorical disqualification demonstrates that the city "regarded" Bridges as substantially limited in his ability to work. 2. Because the city "regarded" Bridges as disqualified from a "class of jobs," the Court need not decide whether it also "regarded" him as disqualified from a "broad range of jobs in various classes" In concluding that the city did not regard Bridges as substantially limited in working, the district court focused only on whether the city perceived him as disqualified from a broad range of jobs in various classes. In order to determine whether an employer perceives an individual as disqualified from a broad range of jobs, a court must first determine the basis on which the employer believed the individual to be disqualified from the 9/See Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 723-724 (2d Cir. 1994) (employer did not regard plaintiff as substantially limited in working where her allergy to "peculiar fumes" within one room in the employer's hospital did not limit her ability to work in her field in general), cert. denied, 115 S. Ct. 1095 (1995); Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir. 1986) (employer did not regard acrophobic utility systems repairperson as substantially limited in working where his condition disquali- fied him only from work at one plant where utility repair in- volved significant climbing and not from utility repair work in general); Jasany v. United States Postal Serv., 755 F.2d 1244, 1250 (6th Cir. 1985) (employer did not regard cross-eyed postal worker as substantially limited in working where his condition prevented him only from working with a particular high-speed mail sorting machine and not from working in the field generally). 01-05362 - 20 - particular job at issue. Then the court must consider the number of other jobs from which the individual would also be disquali- fied on that basis. 28 C.F.R. Pt. 1630, App.  1630.2(j) (1995). The district court engaged in the first of these steps; it determined that the city's basis for rejecting Bridges's applica- tion for the firefighting position would also disqualify him from working in "other fields with extremely high exposure to trauma." Memo. R. 7. However, the district court then went on summarily to conclude that such employment "would constitute a narrow range of jobs." Ibid. The district court could point to no evidence to support that finding. Indeed, appellant contends (Br. 4, 12) that the evidence demonstrates that a broad range of jobs involve such exposure to trauma. This Court need not decide that ques- tion, however, for the city clearly "regarded" Bridges as dis- qualified for the entire class of firefighting jobs. CONCLUSION The judgment of the district court should be reversed. Respectfully Submitted, DEVAL L. PATRICK Assistant Attorney General (Signature) __________________________________ JESSICA DUNSAY SILVER SAMUEL R. BAGENSTOS Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-2174 01-05363 CERTIFICATE OF SERVICE I hereby certify that on December 14, 1995, two copies of the Brief For The United States As Amicus Curiae were served by first-class mail, postage prepaid, on the following counsel of record: Pamela R. Jones, Esq. Walker, Tooke, Lyons & Jones 1700 Irving Place Shreveport, LA 71101 Kenneth Mascagni, Esq. Cook, Yancey, King & Galloway P.O. Box 22260 Shreveport, LA 71120-2260 (Signature) ______________________________ SAMUEL R. BAGENSTOS Attorney Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-2174 01-05364