ARB CASE NO. 96-088
ALJ CASE NO. 94-OFC-8
DATE: September 28, 1999
In the Matter of:
OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
PLAINTIFF
v.
DELTA AIRLINES, INC.,
DEFENDANT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Plaintiff: Debra Millenson, Esq., James D. Henry, Esq., Henry L. Solano, Esq.,
U.S. Department of Labor, Washington, D.C.
For the Defendant: Jeffrey W. Willis, Esq., Rogers & Hardin, Atlanta, Georgia
ORDER OF DISMISSAL
The petitioner, United States Department of Labor, Office of Federal Contract
Compliance Programs (OFCCP), appealed an ALJ's recommended decision and order on cross-motions
for summary judgement in this case arising under Section 503 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 704 et seq. The defendant, Delta Airlines, refused to hire two complainants as
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commercial airline pilots because the complainants did not meet the respondent's minimum vision
requirement of uncorrected visual acuity of 20/20 or better. Both complainants are myopic; however, the
vision of both complainants is correctable to 20/20 with corrective lenses. The OFCCP alleged that, in
violation of the Rehabilitation Act, Delta discriminated against the complainants on the basis of their
disability (i.e. myopia) or because Delta regarded the complainants as having a disability.
On June 22, 1999, the Supreme Court issued a decision in Sutton v. United
Air Lines, Inc., 119 S. Ct. 2139 (1999), a case arising under the Americans with Disabilities Act of
1990 (ADA), 42 U.S.C. § 12101 et seq. The defendant in Sutton, United Air
Lines, refused to employ the plaintiffs as commercial airline pilots because they did not meet United's
minimum vision requirement of uncorrected visual acuity of 20/100 or better. The plaintiffs are severely
myopic, but with corrective measures function identically to individuals without similar impairments. The
plaintiffs alleged that, in violation of the ADA, United discriminated against them on the basis of their
disability, or because United regarded them as having a disability. The Court held that "the
determination of whether an individual is disabled should be made with reference to measures that mitigate
the individual's impairment, including, in this instance, eyeglasses and contact lenses." 119 S. Ct. at
2143. Thus, the Court concluded that because the plaintiffs alleged that with corrective measures
their visual acuity is 20/20, they failed to establish that they are substantially limited in any major life activity.
Id. at 2149. The Court further held that "[b]ecause the position of global airline pilot is a
single job, [the plaintiffs' allegation that the respondent regards their poor vision as precluding them from
holding a global airline pilot's position] does not support the claim that respondent regards [plaintiffs] as
having a substantially limiting impairment." Id. at 2151.
On July 16, 1999, we issued an order to show cause why this case should not be
dismissed given the Sutton decision. In response, OFCCP acknowledged that Sutton
is factually indistinguishable from this case, and agreed that we should dismiss the
appeal. Accordingly, we DISMISS OFCCP's appeal.
