Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 7 (1999)

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Cite as: 527 U. S. 555 (1999)

Opinion of the Court

solely on the ground that Kirkingburg was "not 'otherwise qualified' to perform the job of truck driver with or without reasonable accommodation." App. 39-40; see id., at 119. The District Court granted the motion, ruling that Albert-son's had reasonably concluded that Kirkingburg was not qualified without an accommodation because he could not, as admitted, meet the basic DOT vision standards. The court held that giving Kirkingburg time to get a DOT waiver was not a required reasonable accommodation because the waiver program was "a flawed experiment that has not altered the DOT vision requirements." Id., at 120.

A divided panel of the Ninth Circuit reversed. In addition to pressing its claim that Kirkingburg was not otherwise qualified, Albertson's for the first time on appeal took the position that it was entitled to summary judgment because Kirkingburg did not have a disability within the meaning of the Act. See id., at 182-185. The Court of Appeals considered but rejected the new argument, concluding that because Kirkingburg had presented "uncontroverted evidence" that his vision was effectively monocular, he had demonstrated that "the manner in which he sees differs significantly from the manner in which most people see." 143 F. 3d, at 1232. That difference in manner, the court held, was sufficient to establish disability. Ibid.

The Court of Appeals then addressed the ground upon which the District Court had granted summary judgment, acknowledging that Albertson's consistently required its truckdrivers to meet the DOT's basic vision standards and that Kirkingburg had not met them (and indeed could not). The court recognized that the ADA allowed Albertson's to establish a reasonable job-related vision standard as a prerequisite for hiring and that Albertson's could rely on Government regulations as a basis for setting its standard. The court held, however, that Albertson's could not use complior discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U. S. C. § 12112(a).

561

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