monocular vision that is they have little or no vision in one eye and lack stereopsis which is the ability to see in three dimensions and they have impaired near field depth perception and that anyone with monocular vision is incapable of driving any u p s s vehicle emotionally regardless of its supposed supposed that they are disabled under the california statute even though they're probably not under the federal statute and supposed that they are limited in the life activity of working under the california statute regardless of what the federal statute might say is  yes drivers being more likely to run down little kids on the street because they can see i don't want to i how much do we have to impose on the public before increase in risk is not for that's to be a defense i think obviously no one wants anyone unsafe to be driving anything anywhere at any time but i think the concern here is that by using the vision protocol u p s is categorically basically determining without an individual assessment that no one with monocular vision can drive safely and i think that's what the district court found objectional the first time around which was it was basically throwing out the competent drivers with the incompetent drivers in the trunk can sometimes come plaintiff's first i think where the district court went astray is in finding that they weren't disabled because they hadn't shown that their impairment limited them outside the workplace in daily life compared to others and so on and effectively imported the toyota standard into what is purely a state law issue at this point there's nothing in fee her anywhere that says that plaintiff must show that it is unusually difficult for them to see or that their impairment makes the like activity of life activity and usually difficult just record also error in taking into account what might be called mitigating measures it's really actually unclear frankly whether the as braille doesn't help a blind person to see and nonetheless the district court concluded that because they had adapted to their monocular vision in their daily lives and were able to fish and dry their hair and so on that they weren't disabled that's not the standard under  additional issue of whether they are also disabled from working or does it make any difference in other words if they want once labeled disabled with one major life activity why would you go on to the next major life activity always has i don't know i don't know that makes any sense why does make sense in fact i actually was thinking about that and i'm reluctant as i am ever to concede anything i think i think my hesitation frankly is that i just really don't know and i'm certainly don't need to go to regard it right unless there's an issue with respect to the reasonable accommodation that would follow depending on the nature of the disability i'm not sure and again the distinction between actual if there actually our position is that there are actually  disabled in seeing because of the lack of story absence and the impaired near field depth perception it was an accident or something like i get into all the details of the case and i fall and then i come back out and i work it over  did as disabled because you p s mistakenly thinks that this particular impairment renders them incapable of driving anything including a van a small van which they are perfectly capable of driving and are legally permitted to drive but there are two separate questions you don't necessarily w narrow issue this before this court is whether they're disabled and judging myself i mean right about the individual the need for individual as opposed to group determinations of qualifications that it just has to be harder barrier for the employer to me but i think the problem with the vision protocol is that it's really designed as a screening and going to some to screen out people with an ocular vision and as i understand the m on the screening devices you really can't have a separate test for people with disabilities and you have for others that has to be and people have to be treated the same and if there is somebody with a disability and that is determined through an individual assessment then you assess this i take that demonstrate that he is not a qualified individual with a disability he's just not a qualified individual whether he can see or not well there is no per se rule i don't think about the number of accidents or what it is that disqualify someone you had an accident when he was a was but the question really is who has the burden of proof on that and the district court imposed that burden on mr francis which is really not the burden but also the court also failed to take into account the case provide reasonable accommodations and also has a rearview mirror inside their either ordered without windows or they're put up plywood and painted over so the packages don't break the windows so none of these trucks everything mirrors but expect the accidents graber missed stars of it wasn't his fault finding a fact forth in the coleman are his face very also made a finding of fact that these employees do not find seeing unusually difficult as compared to the other folks in the community they don't challenge the plaintiffs don't judge also correctly applied it and they don't claim that he didn't they challenge the standard not the findings and the reason for that your honor if you listen to ceasars argument closely she said that these individuals are just able to in seeing because they probably we would certainly not allow them to the reason is that when you're driving a u p s truck down a city street of twenty five or thirty miles an hour you have to be able to bring it safely to a stop and a driver with less than twenty two hundred vision in the lesser high to bugger a spark or something gets in the other eye when it two hundred is the standard for gross object perception what would allow the driver to the two hundred means letter e that most people could read it two hundred feet away you need to be within twenty feet correct  and that that is the the the level of blurry vision if you will that would require to see the person or a car coming at the same standard used for the second requirement let me let me ask you something to back the judge great question  guest i read the california statute similarly to judge graver it looks to me like a great majority of people are disabled under california law and and where you the sorting isn't on whether it's a view on whether astonished to hear that your honor first we do think you should decide the disability question when we brought up the affirmative defenses in the district court only man the plaintiffs filed a brief saying the judge also didn't have jurisdiction to consider those defenses because they were holding to the question of whether the plaintiffs are then then returned the case to the district court for further processing of everything and then the district court plane would have everything else there your honor i think you have the discretion the court has the discretion to do that however the judge also made findings of fact on the on the affirmative defenses we have feel that it's all been fully briefed i think the court could also proceed to decide and i think it is in your hands at this point out in ours we have offered the court that option  you know we don't think that these individuals are disabled all we certainly think on the evidence under the boat is necessity defense and the special unique defense which requires only irrational basis based on some in the law so that we can certainly get there on either either path we think that it would be the better course decide the disability first you know where the california legislature is set is broader it has not said that is limitless that's the california supreme court's interpretation of the statute and the court found under that standard that these individuals do not have unusual because if i can offer an example of one or a major life activity seeing this court had a case recently involving eating eating is a major life activity eating chocolate is not a major life activity one subset of the major like of thirty maybe may not be these individuals can see the point of their one is right they can see as well as statutory california statutory definition of physical disability there's a section in which the legislature says we intend this to two broadly defined physical disability to cover a lot of things california your daughter has difficulty with near field death perception sometime over the age of forty that's enough of them a logical fact all of us our eyes decay degrade over time so that we have a problem reading threading needles time fishing flies and so forth that happens to every individual and it all of us are disabled under california law if you don't see as well with our glasses on that is the plainest position we don't think that the california legislature meant to go that far that this court should push the boundaries of california law though actually your honor i disagree with this and that's why there are safety and business necessity defense and that's why there's the reasonable accommodation question if you can put your glasses on and you can see then don't come bothering us for more statute and we don't think that the california legislature meant that every person in california is disabled that's why i was there when they were under california law those of us who were a little heavy and a little old to be valid are disabled your honor it's possible  was i was noticing that two members of the bench are left handed if you were otherwise qualified play for the s f giants you'd be disqualified from the single job of playing third base and judge gregory might be disqualified from filling first base because handedness might be preferred by the manager of baseball team no federal law and california law has not been changed in a way that alters that decision point it's very important to note this court said that people who are regarded as having no stereopsis are not regarded as disabled that doesn't change one of the few i don't quite see how you can make the case that under california state law there is a good defense unless you can see that they're disabled in order to show that it's unsafe for people blind in one eye to drive crocks you have to say that they're nowhere near as evil as people who can see through both eyes to drive  disabled is not having to drive a truck is that they can see they are not seeing for them is not unusually difficult as compared to other people the population it's like handedness or height or something else that's not a disability the employer may evaluate colorblindness the perfect example our policy also screws up people with color when the color blind people are not disabled they simply see differently than other people but they don't find things unusually difficult under california law until the trucks are brown  working under california law your honor this court sitting in diversity one of the erie doctrine would be pushing california law no california decision has never gone that far this court's obligation is to apply the law as the california that if the plaintiffs in this case were viewed as disabled and seeing that every near sighted in every farsighted person in california will be disabled and every person in california at some point in their lives is almost physically short of either near side of her forc narrow close in range they perceive depth perception is slightly different than other people if that's enough then all of us have vision issues that will render us disabled and it's not just vision it's it's eating and walking and who knows what else because preparation for this argument it seemed to me that the grab them and i was to say california law and makes disability a much broader category than federal law because it does not include the word substantially you're right your honor it's adopted a lesser standard the federal law but has not gone all the way down to zero it also went out of its way and it's page ten twenty five of the official reports to reinforce the american national standard of unusually difficult so that while california law is more lenient than the federal standard it does not purport to and does not in fact make every person disabled i mean if that were if what if what passage or my supposed to look at i've got the california say and what those limits mean it means unusually difficult as compared to others in the public whereas the good part from your point of view physical handicap to be a condition of the body that has the disabling effect of making achievement unusually difficult and then he goes on to describe how the legislature indorse that standard with an amended the and how the that standard was not changed by the particular so that the standard all along has ari's remember it's common r s as a retro activity decision the california law has always been limits and limits has always meant and usually difficult so that you know put all the pieces together that is what california law is and that is what under the y fact that there's a mere difference doesn't make somebody just say that that out what do you do about the twelve ninety two certification and have their limits of what we can do what your honor there's two appeals you recall the seeing appeal if that's a final judgment the whole case is up here so you've got a seeing issue if you've got a kings and wilson if you if you find they haven't waived it which we think they have then you've also got the working issue in their appeal and you've got the affirmative defenses you've got the whole case up in front of you in the seeing  for the second of this question that the panel work to hold that the point is are disabled in terms of the major life activity of seeing from your perspective would there be any differen if if there were a further consideration after a major like life activity and working in other words once someone is in the category of disabled for some reason is there anything different about the remainder of the analysis depending on how many categories you put the man or which category you put them out there maybe your honor in the e e o c guidelines under the eighty eight actually speak to this and they say that working is a residual category that should only be addressed if any other major life activity isn't affected so it is a matter of federal law if they're disabled and seeing or any other major life event a uniter get to the working quite that we're not on federal average and i just read that as an analogy california law no california court in the legislature never addressed that question nor do the regulations agency i think it makes sense as a policy matter and the court would be making a policy judgment that point because it's not there is no controlling authority the reason for the us these guidelines is that working is a floodgates to litigation in a way that the seeing decision wouldn't because everybody can find one job that they're not but they can't do because of some physical limitation and you're just going to exponentially create create transportation and they drove trucks without incident so i just want to make sure there isn't an unnecessary specter of fear here and as to the hypothetical blind person well that person would be able to get a driver's license at all which certainly is one of the in most places then you go blind from cataracts or diabetes or one thing or another well i suppose if somebody got a driver's license and then went blind and didn't see anything problem in florida as wise people who gripe i suppose there is some risk of that but i guess i just don't think it's substantial but it's one of the one of the requirements at u p s is that you have a valid driver's license and that was the only point i meant i meant to make with the reference to the blind person an unusual unusual difficulty we're  going usual has never appeared in any version of so i don't know and going harking back to common arson and from there back to american national which is where that comes from in american national ironically the court found that somebody with high blood pressure controlled by department of transportation does not regulate the smaller trucks that are at issue here the ones that are ten thousand pounds or less two thousand one pounds or less and really that's what we're talking about and i think that we should make that clear moloney that opposing counsel or impairment is i just found out rather surprising that opposing counsel would say that these are people who have monocular vision they want to chance to drive they may have impaired in your field that's a perception that depth perception excuse me but they