No. 06-3108 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. SCHNEIDER NATIONAL, INC., Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court For the Eastern District of Wisconsin, No. 04-875 The Honorable William C. Griesbach ____________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________ RONALD S. COOPER DORI K. BERNSTEIN General Counsel Attorney VINCENT BLACKWOOD U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7044 Assistant General Counsel Washington, D.C. 20507 (202) 663-4734 TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . .1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 I. Schneider Regards Hoefner As Having A Disability Under The ADA.3 A. The ADA covers individuals "regarded as" disabled. . .3 B. Schneider believes Hoefner's diagnosis means he cannot safely work as a commercial driver.. . . . . . . . . . . . . . . 5 C. Hoefner's actual ability to drive commercially for other employers is irrelevant to whether Schneider regards him as substantially limited in working. . . . . . . . . . 12 II. Schneider Believes Hoefner Is Disqualified From The Class Of Commercial Driving Jobs And Thus Significantly Restricted In Working As A Truck Driver. . . . . . . . . . . . . . . . . . . . . . . . . 17 III. Schneider's Argument That "Working" Is Not A "Major Life Activity" Is Without Merit.. . . . . . . . . . . . . . . . . . . . . 26 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . 30 TABLE OF AUTHORITIES Page CASES Baulos v. Roadway Express, 139 F.3d 1147 (7th Cir. 1998) . . . . . . . . . . . . . . . 18 Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1997). . . . . . . . . . . . . . 12, 22 Black v. Roadway Express, 297 F.3d 445 (6th Cir. 2002). . . . . . . . . . . . . . . . 18 Cassimy v. Board of Ed. Rockford Public Schools, 461 F.3d 932 (7th Cir. 2006). . . . . . . . . . . . . . 12, 17 DePaoli v. Abbott Laboratories, 140 F.3d 668 (7th Cir. 1998). . . . . . . . . . . . 12, 21, 23 Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). . . . . . . . . . . . . . . . . . . . . .6 EEOC v. Heartway Corp., 466 F.3d 1156 (10th Cir. 2006). . . . . . . . . . . . . 10, 24 EEOC v. J.B. Hunt Transport, 321 F.3d 69 (2d Cir. 2003). . . . . . . . . . . . . 15, 16, 18 EEOC v. Rockwell Int's Corp., 243 F.3d 1012 (7th Cir. 2001) . . . . . . . . . . . . . . . 24 Marinelli v. City of Erie, Pennsylvania, 216 F.3d 354 (3d Cir. 2000) . . . . . . . . . . . . . . . . 18 Moore v. J.B. Hunt Transport, 221 F.3d 944 (7th Cir. 2000). . . . . . . . . . .4, 14, 15, 23 Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) . . . . . . . . . . . . . . . . 25, 26, 27 Ogborn v. United Food and Commercial Workers Union, Local No. 881, 305 F.3d 763 (7th Cir. 2002). . . . . . . . . . . . . . . . 12 Peters v. City of Mauston, 311 F.3d 835 (7th Cir. 2002). . . . . . . . . . . . . . . . 26 Rodriguez v. Conagra Grocery Products Co., 436 F.3d 468 (5th Cir. 2006). . . . . . . . . . . . . . . . 10 School Board of Nassau County v. Arline, 480 U.S. 273 (1987) . . . . . . . . . . . . . . . . . . . . .4 Sinkler v. Midwest Property Management, 209 F.3d 678 (7th Cir. 2000). . . . . . . . . . . . . . . . 27 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) . . . . . . . . . . . . .4, 15, 16, 19, 26 Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002) . . . . . . . . . . . . . . . . . . . . 27 United States Postal Service Bd. of Governors v. Aikins, 460 U.S. 711 (1983) . . . . . . . . . . . . . . . . . . . . .5 Western Air Lines v. Criswell, 472 U.S. 400 (1985) . . . . . . . . . . . . . . . . . . . . 25 STATUTES Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq.. . . . . . . . . . . . . . . . . . 24 29 U.S.C. § 623(f)(1) . . . . . . . . . . . . . . . . . . . 25 Rehabilitation Act of 1973, 29 U.S.C. §§ 790 et seq.. . . . . . . . . . . . . . . . . . 27 29 U.S.C. § 794 . . . . . . . . . . . . . . . . . . . . . . 27 Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12102(2). . . . . . . . . . . . . . . . . . . . 26 42 U.S.C. § 12102(2)(A) . . . . . . . . . . . . . . . . 14, 26 42 U.S.C. § 12102(2)(C) . . . . . . . . . . . . . . . . . 1, 2 42 U.S.C. § 12111(3). . . . . . . . . . . . . . . . . . . . .9 42 U.S.C. § 12201(a). . . . . . . . . . . . . . . . . . . . 27 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.. . . . . . . . . . . . . . . . . 24 42 U.S.C. § 2000e-2(e)(1) . . . . . . . . . . . . . . . . .25 RULES AND REGULATIONS Fed.R.App.P. 32(a)(7). . . . . . . . . . . . . . . . . . . . . 29 29 C.F.R. § 1630.2(j)(3)(i). . . . . . . . . . . . . . 16, 23, 24 29 C.F.R. § 1630.2(j)(3)(ii) . . . . . . . . . . . . . . . . . . 29 C.F.R. § 1630.15. . . . . . . . . . . . . . . . . . . . . . .6 45 C.F.R. § 84.3(j)(2)(ii)(1990) . . . . . . . . . . . . . . . 27 49 C.F.R. § 383.111. . . . . . . . . . . . . . . . . . . . . . 25 49 C.F.R. § 383.113. . . . . . . . . . . . . . . . . . . . . . 25 49 C.F.R. § 390.3(d) . . . . . . . . . . . . . . . . . . . 24, 25 49 C.F.R. § 391.23 . . . . . . . . . . . . . . . . . . . . . . 25 49 C.F.R. § 391.25 . . . . . . . . . . . . . . . . . . . . . . 25 49 C.F.R. § 391.31 . . . . . . . . . . . . . . . . . . . . . . 25 49 C.F.R. § 391.41(b)(8) . . . . . . . . . . . . . . . . . . . .6 49 C.F.R. § 391.41(b)(13). . . . . . . . . . . . . . . . . . . .6 ADMINISTRATIVE GUIDANCE 29 C.F.R. Pt. 1630, App. § 1630.2(j) . . . . . . . . . . . . . 16 29 C.F.R. Pt. 1630, App. § 1630.2(l) . . . . . . . . . . 3, 4, 14 EEOC Compliance Manual: Definition of the Term "Disability," Sec. 902.4 (1995). . . . . . . . . . . . . . . . . . . . . . 24 Page LEGISLATIVE HISTORY H.R. Rep. No. 485 Part 2, 101st Cong., 2d Sess. (1990) . . . . .3 H.R. Rep. No. 485 Part 3, 101st Cong., 2d Sess. (1990) . 4, 5, 14 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) . . . . . . . . .3 OTHER AUTHORITY Webster's New World Dictionary of American English, 3d College ed. (1984) . . . . . . . . . . . . . . . . . . . .9 INTRODUCTION The EEOC, in its opening brief, explained why Schneider's perception that Jerome Hoefner, an otherwise qualified commercial driver with an exemplary safety record, cannot safely drive in any capacity for the largest truckload carrier in North America, shows Schneider regards him as having a "disability" within the meaning of the ADA. See EEOC Br. at 17-42. In response, Schneider advances a construction of the ADA's "regarded as" definition of "disability," 42 U.S.C. § 12102(2)(C), that is directly contrary to the legislative history and purpose of that provision. See Schneider Br. at 14-16. Schneider urges this Court to disregard congressional intent and administrative guidance, see id. at 27-29, 32- 34, in favor of an interpretation of "regarded as" ADA coverage that has been endorsed in only a single decision – the opinion of the district court below. Schneider further asserts that it excluded Hoefner only from "OTR truck driving," which is not a "sufficiently broad" class of jobs to substantially limit him in working. See Schneider Br. at 10. Schneider's argument contradicts its own admission that Hoefner was "disqualified from driving for Schneider in any capacity that requires a commercial driver's license," R.51 at 10 ¶37; undisputed evidence that Schneider believed Hoefner could not safely perform any of the various "types of work" for drivers advertised on its corporate website, see R.47, #13 at 5-8; R.47, #30; see also EEOC Br. at 2-4; and the testimony of its own managers confirming that Schneider permanently disqualified Hoefner from all jobs that entailed driving on public roads, whether local or long-distance, and regardless of vehicle, cargo, route, or schedule. See R.50, #2 (Hyer) at 29-30, 41- 42, 83-85; R.50, #3 (Sullivan) at 39, 79, 119; R.50, #4 (Hinz) at 56-57, 71-73. This undisputed evidence and the reasonable inferences drawn from it are sufficient to support a jury finding that Schneider regards Hoefner as significantly restricted in his ability to work as a truck driver, and therefore, under this Court's precedent, a person with a "disability" within ADA coverage. Schneider's final argument, presented as an alternative basis for affirming summary judgment, is that "working" is not a "major life activity" under the ADA. See Schneider Br. at 27-29. Because the EEOC's regulation defining "major life activities" to include "working" is an interpretation arguably required by the plain language of the ADA, and presumptively intended by Congress, this Court should follow its established precedent that working is a major life activity and apply the EEOC's regulations to determine statutory coverage. ARGUMENT I. Schneider Regards Hoefner As Having A Disability Under The ADA. A. The ADA covers individuals "regarded as" disabled. Schneider's belief that Jerome Hoefner has a medical condition that poses a "grave danger" to himself and "the motoring public" in any commercial driving position, see R.47, #30, demonstrates that it regards him as substantially limited in working, regardless of whether it believes other trucking companies share that perception. Congress defined "disability" in the ADA to prohibit discrimination against individuals with medical conditions that do not in fact limit them in any way, but who are treated by an employer (or other covered entity) as if their conditions are substantially limiting. See 42 U.S.C. § 12102(2)(C); H.R. Rep. No. 485 Part 2, 101st Cong., 2d Sess. 52 (1990) (House Labor Report) ("The third prong of the definition [of "disability"] . . . includes an individual who has a physical or mental impairment that does not substantially limit major life activities, but that is treated by a covered entity as constituting such a limitation."); S. Rep. No. 116, 101st Cong., 1st Sess. 22 (1989) (Senate Report) (same). The ADA's legislative history explains the scope of "regarded as" coverage intended by Congress, and supports the construction adopted by the Commission in interpretive guidance. See 29 C.F.R. Pt. 1630, App. § 1630.2(l). Having recognized "that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment," School Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 284 (1987), Congress extended ADA coverage to those "regarded as" disabled to protect individuals from discrimination based on fears and stereotypes about medical conditions that are not actually disabling, but are so perceived. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999) ("the purpose of the regarded as prong is to cover individuals ‘rejected from a job because of the ‘myths, fears and stereotypes' associated with disabilities") (quoting 29 C.F.R. pt. 1630, App. § 1630.2(l)). Thus, "‘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 disability.'" Moore v. J.B. Hunt Transport, 221 F.3d 944, 953-54 (7th Cir. 2000) (quoting 29 C.F.R. Pt. 1630, App. § 1630.2(l)). Among the "common . . . attitudinal barriers that Congress clearly intended to include within the meaning of ‘regarded as' having a disability under the . . . ADA" are "concerns regarding productivity, safety, insurance, liability, attendance, cost of accommodation and accessibility, and acceptance by co- workers and customers." H.R. Rep. No. 485 part 3, 101st Cong., 2d Sess. 29 (1990) (House Judiciary Report). "[A] person who is rejected from a job because of [these] myths, fears and stereotypes associated 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." Id. More specifically, when an employer rejects an individual because his medical condition raises "the fear of injury . . . [or] increased insurance or worker's compensation costs," "[t]hese reasons for rejection rely on common barriers to employment for persons with disabilities and therefore, the person is perceived to be disabled under the third ["regarded as"] test." Id. at 30. B. Schneider believes Hoefner's diagnosis means he cannot safely work as a commercial driver. The evidence directly demonstrates that Schneider's reasons for excluding Hoefner from commercial driving "rely on common barriers to employment for persons with disabilities and therefore, [Hoefner was] perceived to be disabled under the third ["regarded as"] test." See id. Schneider observes that no one "involved in the decision to terminate Hoefner said . . . that [his] employment was being terminated because he or she thought Hoefner's diagnosis of neurocardio- genic syncope ‘substantially limits him in a major life activity.'" Schneider Br. at 13. The absence of such evidence is hardly surprising, since no one (with the possible exception of lawyers litigating ADA claims) speaks this way. It is also immaterial, since "direct evidence" is not required to prove discriminatory motive. See United States Postal Service Bd. of Governors v. Aikins, 460 U.S. 711, 714 n.3 (1983) ("As in any lawsuit, the plaintiff may prove his [discrimination] case by direct or circumstantial evidence," and the trial court "should not have required [plaintiff] to submit direct evidence of discriminatory intent."); see also Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) ("The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence."). Every doctor who has examined Hoefner since October 2002 has recertified his license to drive commercial vehicles, see R.45 at 24-25 ¶ 106, and thus has necessarily determined, in accord with Federal Motor Carrier Safety Administration (FMCSA) regulations, that he "[h]as no established medical history or clinical diagnosis of . . . any . . . condition which is likely to cause loss of consciousness or any loss of ability to control a commercial motor vehicle." See 49 C.F.R. § 391.41(b)(8).<1> Yet Schneider considers him disqualified from commercial driving because it fears his diagnosis could "result in serious injury or death," "significant damage to equipment and property," and potential liability to the company. R.50, #3 (Sullivan dep.) at 81 ("Under Schneider's policy anyone with neurocardiogenic syncope is disqualified [from] driving for Schneider because a driver with this condition may faint which would certainly result in serious injury or death to himself and others as well as significant damage to equipment and property."); see also R.51 at 10 ¶37 (driver "diagnosed with one of the three listed forms of syncope . . . is disqualified from driving for Schneider in any capacity that requires a commercial driver's license"). Based on this perception of Hoefner's medical condition, Schneider informed him that he would "not be allowed to return to work, as a driver, with Schneider National, Inc." because the company "simply cannot take the risk that while driving, [he] would lose consciousness" and "put [himself] and the motoring public in grave danger." R.47, #30. Nurse Wendy Sullivan, who disqualified Hoefner from driving and now runs Schneider's occupational health department, testified that Schneider considers Hoefner, or any person with his diagnosis, to be a "direct threat" as a commercial driver, R.50, #3 (Sullivan) at 20-22, and that "other trucking companies are wrong in their belief that these drivers are not automatically disqualified." Id. at 173-75. Schneider misrepresents the record in stating that "Sullivan did not use that term [direct threat] in the ADA sense." See Schneider Br. at 30 (emphasis in original). The following exchange demonstrates that Sullivan discussed her perception that Hoefner was a "direct threat" in response to a question about the ADA: Q: You didn't take the ADA into consideration when applying [Schneider's syncope] policy? A: Other than the piece of the ADA where I would be concerned about safety. Q: Okay. And what piece is that? A: As far as whether or not Mr. Hoefner was a threat to the motoring public. Q: The direct threat language? A: Yes. * * * Q: How did you take the direct threat language into account when you were looking at Mr. Hoefner's case? A: Basing it on the fact that under the federal regulation, DOT regulation, which, you know, I'm bound to make sure that I follow, the diagnoses under . . . the Schneider policy, neurocardiogenic, vasovagal [and] pertussive syncope are diagnoses that, once we have . . . a firm diagnosis, is a matter of safety and direct threat, yes. Q: So it's just automatic that you consider that a direct threat? A: Yes. Q: Any person who has a diagnosis of any of those forms of syncope you automatically consider a direct threat? A: Yes. R.50, #3 at 20-22. Regardless of whether Sullivan knows the precise statutory definition of the term "direct threat,"<2> her testimony clearly demonstrates that Schneider believes Hoefner's diagnosis makes him "not . . . safe to drive a commercial vehicle." See R.50, #3 at 119 (Hoefner was disqualified from "driving for Schneider National . . . because his physician diagnosed him with a condition that we indicate and believe is not . . . safe to drive a commercial vehicle"). The dictionary defines "threat" as "an indication of imminent danger, harm, evil, etc." or "a potential source of this." Webster's New World Dictionary of American English, 3d College ed., at 1394 (1984). Among the various usages of "direct" as an adjective, the most pertinent dictionary definition is "immediate." Id. at 389. The ordinary meanings of the words "direct" and "threat" are thus no less probative than the statutory definition that Schneider perceives that Hoefner cannot safely work as a commercial driver.<3> Sullivan's candid testimony that "other trucking companies would do well if they followed the same [syncope] protocol" as Schneider, and "would be wrong if they put Mr. Hoefner back on the road," R.50, #3 at 16, further demonstrates that Schneider perceives him to have a medical diagnosis that "automatically disqualifie[s]" him from commercial driving, and that "other trucking companies are wrong" to believe otherwise. Id. at 173-75. Other courts have relied on similar statements by decisionmakers to find sufficient evidence that an employer regarded an individual as substantially limited in working, and thus covered by the ADA. See, e.g., EEOC v. Heartway Corp., 466 F.3d 1156, 1166 (10th Cir. 2006) ("a jury could reasonably view the testimony" that nursing home manager told dietary aide that "‘you have Hepatitis C, you will not work in our kitchen,'" and expressed concern that she might cut her finger and contaminate food with her blood, "as showing that [manager] believed [plaintiff] was restricted in her ability to do any kitchen job . . . and any other job where there is a chance of bleeding and thereby transmitting hepatitis"); Rodriguez v. Conagra Grocery Products Co., 436 F.3d 468, 476-77 (5th Cir. 2006) (statement that applicant for entry-level job was not qualified for any position in employer's food processing plant because manager thought his diabetes was uncontrolled and "could lead to dizziness and blacking out" and employer's contract physician believed "he could . . . fall and break his neck from dizziness and fainting" "shows beyond cavil, as a matter of law, that [defendant] regarded [plaintiff's] diabetes as substantially limiting his ability to engage in the major life activity of working"). In an apparent effort to evade the probative significance of direct evidence that Schneider disqualified Hoefner from commercial driving because it believes his diagnosis poses a direct threat and grave danger to the driving public, see R.50, #3 at 20-22; R.47, #30, Schneider rechristens its motivation "corporate risk tolerance," a phrase used by none of its managers to explain the decision to disqualify Hoefner. See Schneider Br. at 17 ("Schneider terminated Hoefner not because of stereotypes or medical myths about neurocardiogenic syncope, but rather because Schneider's corporate risk tolerance could not bear the safety hazards associated with such a diagnosis.") (emphasis in original). Schneider's semantics, however, cannot mask direct evidence that Schneider acted based on fears and stereotypes identified by Congress as "common attitudinal barriers" that necessitated extending ADA protection to individuals regarded as disabled. See EEOC Br. at 32-34; supra at 3-5. The disparity between the unanimous determinations of all three physicians who have examined and recertified Hoefner to drive commercially following his single syncopal episode in October 2002, see R.45 at 24-25, ¶¶ 106-07, and the view of Schneider managers that his medical condition poses a "direct threat" to public safety because he could lose consciousness while driving and put the driving public in "grave danger," see R.50, #3 at 20-22; R.47, #30, would support a jury finding that Schneider "‘held exaggerated views about the seriousness'" of Hoefner's medical condition and regarded him as disabled. See Cassimy v. Board of Ed. Rockford Public Schools, 461 F.3d 932, 937 (7th Cir. 2006) (quoting Ogborn v. United Food and Commercial Workers Union, Local No. 881, 305 F.3d 763, 767 (7th Cir. 2002)). If Hoefner were actually as impaired as Schneider perceives him to be – i.e., if he were actually disqualified from commercial driving because his medical diagnosis made him a direct threat to the driving public – there is no question that he would be significantly restricted in his ability to perform the class of truck driving jobs, and therefore substantially limited in working. See DePaoli v. Abbott Laboratories, 140 F.3d 668, 672-73 (7th Cir. 1998) ("evidence tending to show" commercial truck driver's impairment "might preclude him from all truck drivers' jobs, not just the job he had done for [his employer]" was sufficient to demonstrate he was substantially limited in ability to work in class of jobs) (citing Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1997)). C. Hoefner's actual ability to drive commercially for other employers is irrelevant to whether Schneider regards him as substantially limited in working. Schneider nonetheless insists that it did not regard Hoefner as substantially limited in working because it knew he could drive commercially for other trucking companies that do not share Schneider's fear that "while driving, [he] would lose consciousness" and "put [himself] and the motoring public in grave danger." R.47, #30; see Schneider Br. at 14-16 (arguing that Schneider's "belie[f] that Hoefner would easily secure employment as a commercial driver with another company . . . is fundamentally inconsistent" with EEOC's claim that Schneider regards him as having a substantially limiting impairment). In advancing this argument, Schneider urges this Court to disregard legislative history, id. at 34, and administrative guidance, id. at 27-29, 32-33, reflecting Congress's intent to prohibit discrimination against those "regarded as" disabled precisely to ensure that such fears about a medical condition or diagnosis (like neurocardiogenic syncope) do not limit the opportunities of a qualified individual (like Hoefner) whose condition is not actually disabling – regardless of whether these fears are shared by others or merely embodied in the "idiosyncratic risk aversion" of a particular employer (like Schneider). See id. at 17. Congress clearly intended that ADA coverage under the "regarded as" definition of disability would depend on an employer's perception of an individual's limitations, not on the individual's actual abilities or how others may perceive him. See EEOC Br. at 30-36 and discussion supra at 3-5. The evidence on which Schneider relies to argue that it does not regard Hoefner as disabled – proof that he is not actually limited in working because other employers do not consider him disqualified from driving commercially<4> – is therefore plainly irrelevant to whether Schneider regards him as having a substantially limiting impairment within ADA coverage. 29 C.F.R. Pt. 1630, App. § 1630.2(l) ("An individual rejected from a job because of the ‘myths, fears, and stereotypes' associated with disabilities would be covered under [the "regarded as"] part of the definition of disability, whether or not the employer's or other covered entity's perception were shared by others in the field and whether or not the individual's actual physical or mental condition would be considered a disability under the first or second part of this definition.") (emphasis added); House Judiciary Report at 29 (same). The fact that Hoefner remains fully qualified to drive commercially, and that other trucking companies are willing to hire him, simply shows that his condition is not actually disabling under the ADA, 42 U.S.C. § 12102(2)(A), and that other employers do not share Schneider's mistaken belief that his diagnosis automatically transformed him from a safe, responsible truck driver into a direct threat and grave danger to public safety on the road. As this Court has recognized, Congress extended ADA coverage to individuals "regarded as" disabled to protect them from discrimination arising from such misperceptions. See Moore, 221 F.3d at 954 ("The concern . . . is that employers will act on a misunderstanding of an individual's impairment with the result that a qualified, nondisabled person will be precluded from employment."). It is hardly surprising, given these clear indicia of congressional intent, that Schneider cannot cite a single decision – aside from the opinion of the district court below – holding that an employer who considers an individual medically disqualified from a class of jobs nevertheless does not regard him as substantially limited in working because it knows other employers will hire him for identical jobs. Schneider relies primarily on the Supreme Court's opinion in Sutton and the Second Circuit's decision in EEOC v. J.B. Hunt Transport, Inc., 321 F.3d 69 (2d Cir. 2003). See Schneider Br. at 18-22. Yet neither decision supports Schneider's novel construction of the ADA's "regarded as" coverage provision. In each case, the Court held, in accordance with the EEOC's regulation and guidance, that the employer had disqualified the applicants only from a particular position, rather than a class of jobs, and therefore did not regard them as substantially limited in working. See Sutton, 527 U.S. at 492-93 (plaintiffs "failed to allege adequately that their poor eyesight is regarded as an impairment that substantially limits them in the major life activity of working," having "allege[d] only that [the airline] regards their poor vision as precluding them from holding positions as a ‘global airline pilot'" and "the position of global airline pilot is a single job"); J.B. Hunt, 321 F.3d at 75 ("[d]riving 40-ton, 18-wheel trucks over long distances for extended periods is neither a ‘class of jobs' nor a ‘broad range of jobs' within the meaning of the ADA . . . but rather a specific job with specific requirements"); accord 29 C.F.R. § 1630.2(j)(3)(i) ("The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working."). In each case, the Court relied on the availability of "other positions utilizing [the applicants'] skills," from which the employer had not disqualified them, to hold that the employer did not regard them as significantly restricted in working in a class of jobs. See Sutton, 527 U.S. at 493 (identifying "a number of other positions utilizing [plaintiffs'] skills, such as regional pilot and pilot instructor to name a few that are available to them"); J.B. Hunt, 321 F.3d at 75 ("[E]ven assuming that truck-driving in general is a sufficiently broad range or class of jobs . . . persons licensed to drive the types of vehicles driven by Hunt OTR drivers are also qualified to drive ‘various types of small and large trucks, including tractor- trailers, moving trucks, and cargo vans.'"); accord 29 C.F.R. Pt. 1630, App. § 1630.2(j) ("[A]n 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 substantially limited in the major life activity of working."). Neither the Supreme Court, nor the Second Circuit, nor any other court, except the court below, has held that an employer did not regard a rejected applicant or employee as substantially limited in working because it believed other employers would hire him for the same position. Certainly, this Court has never so held. In attempting to suggest that it has, Schneider misrepresents this Court's decision in Cassimy. See Schneider Br. at 16. The Court in Cassimy cited the plaintiff's ability to work as an administrator with another school district in support of its holding that his depression was not an actual disability because it did not substantially limit him in working. See Cassimy, 461 F.3d at 937. His ability to find similar employment elsewhere was not cited as a reason for rejecting his "alternative" argument that the defendant School "Board regarded him as disabled." Id. Notably, the Board in Cassimy offered the plaintiff, "a former administrator and teacher" in the school district, alternative administrative jobs (as assistant principal) and teaching positions when his stress and anxiety prevented him from performing his job as a principal. Id. at 934-35. These facts stand in stark contrast to Schneider's decision that Hoefner's medical diagnosis permanently disqualified him from every driving position in its workforce. II. Schneider Believes Hoefner Is Disqualified From The Class Of Commercial Driving Jobs And Thus Significantly Restricted In Working As A Truck Driver. Had Schneider regarded Hoefner as unable to perform only his former job – in which he drove a "tractor-trailer that was more than 60 feet long, and weighed more than 80,000 pounds, over 500 miles per day, for stretches of 10 hours per day of driving time, at speeds up to 65 miles per hour," see Schneider Br. at 2-3 – this case would be similar to J.B. Hunt and other decisions holding that a truck driver's inability (actual or perceived) to operate certain types of vehicles or equipment,<5> or to meet the unique requirements of a particular driving position,<6> is insufficient to show an (actual or perceived) substantial limitation on working. By contrast, Schneider considers Hoefner permanently disqualified from driving for the "largest truckload carrier in North America," see R.47, #12, "in any capacity that requires a commercial driver's license."<7> R.51 at 10 ¶3. Schneider's corporate website describes the various "types of work" and "wide range of opportunities" available to the 13,000-plus drivers in its three trucking divisions, see R.47, #13 at 5-8, and Schneider managers Hyer and Hinz described several positions that did not require long-distance driving, such as "local," "yard," and "tarping and securement" drivers. R.50, #2 (Hyer) at 41-42; R.50, #4 (Hinz) at 56, 71-73. There is no dispute that Schneider believed Hoefner could not safely perform any of these jobs, and that its decision to disqualify him from commercial driving foreclosed him from driving for Schneider in any capacity. See R.47, #30 (informing Hoefner he "will not be allowed to return to work, as a driver, with Schneider National"); R.50, #3 (Sullivan) at 39 (Hoefner "has a disqualifying medical condition, therefore [he] is no longer able to drive for Schneider National . . . He's medically disqualified from driving for Schneider."). This undisputed evidence establishes beyond doubt that Schneider perceives Hoefner as "precluded from more than one type of job, a specialized job, or a particular job of choice," see Sutton, 527 U.S. at 492, and is sufficient to show Schneider regards him as having a medical condition that significantly restricts his ability to work as a truck driver. Schneider asserts that it excluded Hoefner only from "OTR truck driving," which is not a "sufficiently broad" class of jobs to show it perceived him as substantially limited in working. See Schneider Br. at 10. Schneider complains that the EEOC on appeal has substituted "commercial" driving for "OTR" driving to describe the scope of jobs from which Schneider disqualified Hoefner, and argues that the EEOC has "waived" its argument that the company's perception that Hoefner cannot safely drive commercial vehicles demonstrates that it regards him as substantially limited in working as a truck driver. Schneider Br. at 22. Schneider's objection is contrary to the record. As noted in the EEOC's opening brief (and not challenged by Schneider), the term "OTR" or "over the road" does not appear in federal regulations or on Schneider's website. See EEOC Br. at 3, note 2. Schneider manager Lynn Hyer, who has worked for the company in various capacities for over 20 years, see R.50, ex.2 (Hyer) at 5, testified that a "commercial driver" is "the same thing" as an "over-the-road driver," id. at 29-30, and that Schneider requires a commercial license for any job requiring driving "on a public highway." Id. at 83-85. In its own proposed findings of fact, moreover, Schneider treated the terms "OTR" and "commercial" driving as equivalent. See R.51 at 10 ¶37 ("[W]ithout exception Schneider does not allow [a driver diagnosed with one of the three listed forms of syncope] to work as an over-the-road driver for Schneider. . . . Specifically, the individual is disqualified from driving for Schneider in any capacity that requires a commercial driver's license.") (emphases added). Because the terms "OTR" and "commercial" were used interchangeably below, the EEOC has merely substituted the better defined term "commercial" driver as a more accurate reflection of Schneider's judicial admissions and the testimony of its managers. See also R.50, #3 (Sullivan) at 119 (Hoefner was "diagnosed . . . with a condition that we . . . believe is not . . . safe to drive a commercial vehicle"); id. at 79 (Hoefner "will not be allowed to drive commercial vehicle[s] for Schneider"). Hoefner has worked as a commercial truck driver for the past 17 years, and has satisfied the specialized training, testing, and all other licensing requirements to drive commercially. See EEOC Br. at 4-5. Schneider's perception that Hoefner's diagnosis permanently disqualifies him from any job driving a commercial vehicle on public roads, regardless of vehicle type (van, tanker, tractor-trailer, flatbed, or sleeper); assigned route (local, regional, long-distance, dedicated, or variable); nature of cargo (hazardous or non-hazardous); driving schedule (overnight or daytime); or driver configuration (team or solo), see R.47, #13 at 5-8, would support a jury finding that Schneider regards him as having a medical condition that significantly restricts his ability to work as a truck driver. Under this Court's precedent, such a finding establishes that Schneider regards Hoefner as substantially limited in working, and suffices to demonstrate ADA coverage. See DePaoli, 140 F.3d at 673 ("If a disability limits a person from holding a job for which she has a specialized license, and the person would need to undergo significant new training to become qualified for positions of comparable responsibility elsewhere, that fact too would help draw the line between the class of jobs relevant to the ADA and those that are too remote from the position at issue."); Best, 107 F.3d at 548-49 (evidence sufficient for a "reasonable trier of fact [to] find that Best's bad knee substantially limited his ability to work as a truck driver," or "that Shell perceived Best as having a disability that prevented him from working as a truck driver for the company" required reversal of summary judgment). Schneider wrongly states that "Best is not a ‘regarded as' case." Schneider Br. at 22. Elsewhere in its brief, Schneider concedes that this Court in Best found sufficient evidence for a jury to decide whether Best was regarded as disabled, see Schneider Br. at 24, but significantly misrepresents the Court's holding in this regard. Schneider characterizes the decision as "finding a genuine issue of material fact as to whether defendant regarded plaintiff as unable to work ‘as a truck driver' generally," see id., but this Court in fact ruled that "a trier of fact could find that Shell perceived Best as having a disability that prevented him from working as a truck driver for the company." 107 F.3d at 549. The reason for Schneider's inaccuracy is obvious: There is no dispute that Schneider perceives Hoefner "as having a disability that prevent[s] him from working as a truck driver for the company," id., and the Court's ruling in Best thus forecloses Schneider's argument that it can defeat "regarded as" coverage by showing it believed he could work as a truck driver for another employer. Schneider asserts, without any evidentiary support, that "[t]here are many types of truck drivers, some which require a commercial truck drivers [sic] license and some which do not." Schneider Br. at 27. Yet there can be no question that the job prospects and earning potential of a licensed and experienced commercial truck driver are significantly reduced if he develops a medical condition that disqualifies him from commercial driving. See Moore, 221 F.3d at 953 ("In the context of working, ‘substantially limits' means ‘significantly restricted in the ability to perform 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.'") (quoting 29 C.F.R. § 1630.2(j)(3)(i)). For this reason, this Court has identified the requirement of a "specialized license" – such as a commercial driver's license – as a fact relevant to decide whether work requiring such a license comprises a "class of jobs" sufficient to demonstrate a substantial limitation in working. DePaoli, 140 F.3d at 673. As this Court has recognized, "the EEOC's interpretive guidelines make clear that the factors set out in [29 C.F.R.] § 1630.2(j)(3)(ii)," to determine whether a person is substantially limited in performing a class or broad range of jobs, "are not intended to require an onerous evidentiary showing. Rather, the terms only require the presentation of evidence of general employment demographics and/or of recognized occupational classifications that indicate the approximate number of jobs (e.g., ‘few,' ‘many,' ‘most') from which an individual would be excluded because of an impairment." EEOC v. Rockwell Int'l Corp., 243 F.3d 1012, 1012 (7th Cir. 2001) (quoting 29 C.F.R. Pt. 1630, App. § 1630.2(j)). "Furthermore, in cases where it is clear that an individual is excluded from a class of jobs . . . only minimal evidence will be required." Heartway, 466 F.3d at 1164 (citing EEOC Compliance Manual, § 902.4 (1995)). Schneider's decision to disqualify Hoefner from working "in any capacity that requires a commercial driver's license," R.51 at 10, ¶37, demonstrates that it perceives him as entirely foreclosed from the class of commercial driving jobs, and significantly restricted in his ability to work as a truck driver. The EEOC's position in this case does not, as Schneider contends, "nullify" the FMCSA provision stating generally that "[n]othing in [the FMCSA regulations] shall be construed to prohibit an employer from requiring and enforcing more stringent requirements relating to safety of operation and employee safety and health." 49 C.F.R. § 390.3(d) (quoted in Schneider Br. at 33). Pursuant to this provision, motor carriers are free to adopt stricter safety standards than those required by the FMCSA, so long as these standards do not contravene the ADA or other federal statutes, including Title VII, 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. See EEOC Br. at 38-39 note 14 (quoting legislative history explaining ADA's application to transportation industry employers subject to federal, state, and local safety regulation). Consistent with the ADA, for example, a carrier could subject prospective drivers to more extensive background checks, see 49 C.F.R. § 391.23; more rigorous road tests, see 49 C.F.R. § 391.31; more stringent or frequent reviews of driving records, see 49 C.F.R. § 391.25; or more extensive knowledge and skill requirements, see 49 C.F.R. §§ 383.111, 383.113, than those required by FMCSA rules. Under Schneider's reasoning, 49 C.F.R. § 390.3(d) would permit a trucking company to disqualify female drivers, or drivers over age 55, on purported safety grounds, without meeting the federal statutory requirement of demonstrating that sex, or age, is a bona fide occupational qualification (BFOQ) under Title VII, 42 U.S.C. § 2000e-2(e)(1), or the ADEA, 29 U.S.C. § 623(f)(1). But cf. Western Air Lines v. Criswell, 472 U.S. 400 (1985) (airline's safety-based disqualification of flight engineers at age 60 was subject to ADEA's BFOQ defense). In any event, Schneider's reliance on FMCSA regulations pertains only to whether Hoefner is "qualified" – an issue the district court found undisputed, R.66 at 4 ("there is no dispute that Hoefner was qualified to drive for Schneider") – or whether Schneider has a viable defense to the EEOC's ADA claim, not to the question of coverage, which was the sole basis for the district court's judgment and the only issue currently before this Court. See Murphy v. United Parcel Service, Inc., 527 U.S. 516, 522-23 (1999) ("We need not resolve the question whether petitioner could meet the standards for DOT health certification, however, as it goes only to whether petitioner is qualified and whether respondent has a defense based on the DOT regulations."). III. Schneider's Argument That "Working" Is Not A "Major Life Activity" Is Without Merit. Finally, as an alternative basis for affirmance, Schneider urges this Court to hold (unlike any other Circuit) that "working" is not a "major life activity" under the ADA. See Schneider Br. at 27-29. This Court should decline Schneider's radical invitation to depart from its prior precedent, see Peters v. City of Mauston, 311 F.3d 835, 844 (7th Cir. 2002) ("To be sure, working constitutes a major life activity under the ADA."), and that of every other federal appellate court.<8> Schneider seizes on dicta in the Sutton opinion, in which the Court observed that "no agency has been delegated authority to interpret the term ‘disability,'" as defined in 42 U.S.C. § 12102(2), 527 U.S. at 479, and "note[d] . . . that there may be some conceptual difficulty in defining ‘major life activities' to include work." Id. at 492. Because the parties "accept[ed] that the term ‘major life activities' includes working," however, the Court did "not determine the validity of the [EEOC's] regulations," and assumed "without deciding that working is a major life activity and that the EEOC regulations interpreting the term ‘substantially limits' are reasonable." Id.; see also Murphy, 527 U.S. at 523 (assuming validity of EEOC "regulations regarding the disability determination" and applying regulations governing substantial limitation in working). This Court has done likewise on numerous occasions, see EEOC Br. at 21 note 9 (citing cases), and decided that "until the Supreme Court definitively excludes working as a major life activity, we will follow the precedent of this circuit and regard ‘working' as a major life activity." Sinkler v. Midwest Property Management, 209 F.3d 678, 684 (7th Cir. 2000). The EEOC's regulatory interpretation of the statutory term "major life activities" is derived verbatim from federal regulations promulgated under the Rehabilitation Act of 1973, 29 U.S.C. § 794. Regulations issued by the Department of Health Education and Welfare (HEW) defined "major life activities," as used in the Rehabilitation Act, to include "working." See 45 C.F.R. § 84.3(j)(2)(ii) (1990). Congress expressly provided, in a section of the ADA entitled "Construction," that "nothing in this chapter shall be construed to apply a lesser standard than the standards applied under Title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title." 42 U.S.C. § 12201(a) (emphasis added). Consistent with the ADA's mandate, the Supreme Court has recognized that the Rehabilitation Act regulations issued by HEW are particularly persuasive authority in construing the term "disability" in the ADA, because "Congress drew the ADA's definition of disability almost verbatim from the definition of ‘handicapped individual' in the Rehabilitation Act . . . and Congress' repetition of a well-established term gener- ally implies that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations." Toyota Motor Manufacturing v. Williams, 534 U.S. 184, 193-94 (2002). Because the EEOC's rule defining "major life activities" is a construction arguably required by the plain language of the ADA and presumptively intended by Congress, this Court should follow its established precedent and apply the EEOC's regulations to determine statutory coverage. CONCLUSION Because the evidence is sufficient to demonstrate that Schneider regarded Hoefner as having a disability within ADA coverage, the EEOC urges this Court to reverse the summary judgment and remand for further proceedings. Respectfully submitted, /s/ Dori K. Bernstein RONALD S. COOPER DORI K. BERNSTEIN General Counsel Attorney VINCENT BLACKWOOD U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITYCOMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7044 Assistant General Counsel Washington, D.C. 20507 (202)663-4734 CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7) The undersigned, counsel of record for the plaintiff-appellant, Equal Employment Opportunity Commission, furnishes the following in compliance with F.R.A.P. 32(a)(7): I hereby certify that this brief conforms to the rules contained in F.R.A.P. 32(a)(7) for a brief produces with a proportionally spaced font. The length of this brief is 6,942 words. Dated: January 16, 2007 U.S. Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7044 Washington, D.C. 20507 /s/ Dori K. Bernstein Dori K. Bernstein Attorney for the plaintiff-appellant, Equal Employment Opportunity Commission CERTIFICATE OF SERVICE I, Dori K. Bernstein, counsel for Plaintiff-Appellant, the Equal Employment Opportunity Commission, certify that on January 16, 2007, two copies of the Reply Brief of Appellant were delivered by first class U.S. mail to counsel for Defendant-Appellee Schneider National, Inc.: Mark A. Casciari Alison B. Willard James L. Curtis SEYFARTH & SHAW, LLP 131 S. Dearborn Street Suite 2400 Chicago, Illinois 60603 On January 16, 2007, a digital copy of the full contents of the brief was furnished electronically to opposing counsel at: MCasciari@Seyfarth.com. /s/ Dori K. Bernstein DORI K.BERNSTEIN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7044 Washington, D.C. 20507 (202)663-4734 Dori.Bernstein@eeoc.gov January 16, 2007 *********************************************************************** <> <1> Schneider sounds a false alarm in asserting, without support, that a decision reversing the district court “would nullify DOT regulations that allow an employer to make decisions on the basis of a medical condition.” Schneider Br. at 33. To the contrary, the EEOC’s regulations expressly recognize “a defense to a charge of discrimination under [the ADA] that a challenged action is required or necessitated by another Federal law or regulation, or that another Federal law or regulation prohibits an action (including the provision of a particular accommodation) that would otherwise be required by this part.” 29 C.F.R. § 1630.15. Thus, if an applicant were unable to obtain a commercial license because, for example, he has a “current clinical diagnosis of alcoholism,” 49 C.F.R. § 391.41(b)(13), an employer like Schneider would have a defense to an ADA claim that the applicant was denied a commercial driving position because of his medical condition. Schneider has not identified any federal law or regulation that required it to disqualify Hoefner from all driving positions. <2> The ADA defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3). While Sullivan is not an attorney and may not know the “meaning of the term ‘direct threat’ . . . given by the courts,” see Schneider Br. at 30-31 n. 12 (quoting R.50, #3 at 190), she testified that she is “familiar” with the ADA and has received ADA training while employed by Schneider. See R.50, #3 at 6, 18-19. <3> Schneider appears to suggest Sullivan’s testimony that Hoefner’s condition makes him a “direct threat” as a commercial driver should not be considered by the Court because the company has disclaimed any reliance on a direct threat defense. See Schneider Br. at 30. Schneider’s decision not to assert that defense, however, in no way reduces the probative significance of Sullivan’s characterization of Hoefner as a “direct threat” to the question before the Court: whether Schneider perceives him as having a substantially limiting impairment. <4> See Schneider Br. at 12 (citing “the undisputed fact that Hoefner went to work for another company as an OTR truck driver immediately after” Schneider terminated his employment); id. at 15 (Schneider believed “Hoefner would have no trouble finding an OTR truck driving job” with another company). <5> See, e.g., Black v. Roadway Express, 297 F.3d 445, 453-54 (6th Cir. 2002) (driver’s knee injury prevented him from operating trucks without cruise control); Marinelli v. City of Erie, Pennsylvania, 216 F.3d 354, 365-66 (3rd Cir. 2000) (maintenance worker’s arm pain prevented him from operating snow plow). <6> See, e.g., Baulos v. Roadway Express, 139 F.3d 1147, 1154 (7th Cir. 1998) (drivers with sleep disorders were “unable to perform the particular position at Roadway that entailed driving sleeper trucks”). <7> The EEOC cites the breadth of Schneider’s operations and the wide variety of “career opportunities” the company offers to truck drivers to demonstrate the broad scope of the class of jobs Schneider believed Hoefner was unable to perform, see EEOC Br. at 2-4, 23-24, not to show (as Schneider wrongly states) that “Schneider monopolizes the trucking market in the United States.” Schneider Br. at 16. Although evidence of “market domination” might be relevant if the EEOC had alleged that Hoefner were actually substantially limited in his ability to work as a truck driver due to Schneider’s decision to disqualify him from commercial driving, such evidence is entirely unnecessary to show Schneider regarded Hoefner as substantially limited in working. <8> No federal appellate court has held that “working” is not a “major life activity” within the meaning of the ADA, 42 U.S.C. § 12102(2)(A).