found that u s steel regarded mr wolf as disabled from a broad range of jobs the rationale used by u s steel to determine that a monocular individual could not do the utility technician to  position would disqualify him for a broad range of jobs and we want to look at the things that they considered the first is to stop you in the regarded as just to make sure i'm grasping this so the regarded as point is to satisfy that it's not you don't satisfy that by showing this person can't perform that job you have to say they were guarding them as disabled and to say they're regarded as disabled means to show they can't do most jobs that is correct and that's so the person that supplies the evidence that's helpful to the judge is wilkinson and at the time wilkinson is not he would i guess he later becomes the plant manager but he's not the plant manager at the time he says this and i mean it's kind of hard to understand exactly what he is saying to be honest with you but i thought that the troubling point from your perspective was he wasn't a plant manager so it seems in context either he was talking only about a limited class of jobs that would be problematic or if he was talking about the whole plant i don't quite understand how he could say that if he wasn't the plant manager how would he know because because he was a decision maker he was the individual rendering the opinion as to whether or not mr wolf could work there yeah but maybe i did make the point clear if his point this is what i think he's saying this is the mistake i think the district court made i think he's simply saying either he can't do this job and that's the promise of the regarded as ruling and if that's all he's saying that doesn't prove they were guarded him is disabled that proves they regarded him as not being able to do this job that's a different that's that's not regarded as a claim you're following what i'm saying i am and i would when out factually that at that time he had worked in two thirds of the plan and what he said was we do not have a he being wilkinson yes thank you he said what he said at the time was we do not have a position that he could perform safely on the plant floor and he had worked in at least two thirds of the plan if not more in and i and additionally i mean maybe maybe your best way of thinking about this is a summary judgment and unclear but the question is whether the tribal issue of fact and maybe maybe that's the way to think about this there's enough evidence there to say there's trouble to issue a fact and until there's further evidence either about wilkinson's ability to even say whether we couldn't do any of these other jobs or not well we think that there is more in addition to just wilkinson's opinion in terms of how mr wolfe was regarded as unable to do a broad classification of jobs the first thing is we're talking about the utility technician to position and as mr wilkinson also said that position in compass is many different positions many different jobs each one running a different piece of equipment and each one having a different responsibility we can also look at the position description for the utility technician position and if you look at that you will see that it basically describes every process in the manufacturing in the manufacturing process if you've been able to do the things that are set forth in that job description he's basically excluded from doing any manufacturing job in the united states now report it's worth one of the hard things about this case and there's this tension in the evidence is that mr wells seems to be a guy that can do lots and lots of jobs and it seemed the employer understood that so that's very it's a very strange set of facts to then say this same individual was regarded as disabled which is to say regarded as not being able to perform any jobs i thought this was a case in which everyone but made it hard as everyone knew he's done lots of work like this of course he can work safely that that was your best team in the case and why are they suddenly saying no to this job so that's why so much of the evidence to me seems to be evidence saying we were guardian is not being able to do this job that's that's why i'm saying this thank you your honor so here's what i would say to that the they did not consider mr wolfson billeted to do the job instead the question posed to mr wilkinson was with an individual with this impairment a monocular individual no specific information about mr wolf in his experience but just would a monocular individual be able to form disposition if if were moving from regarded as discipline as disabled to the individual ised inquiry for a second here you basically say there was no end of an individual ised inquiry and i'm finding that hard to understand because of the number of steps that us steel went through once they got the results of the i examination so the only way i can really make sense of that argument and tell me if i'm misunderstanding it is for you to say yes they talk to a lot of people to try to figure out how his condition would or would not permit him to be able to do that job which i think is an individual as an inquiry but they had to take one at least one additional step which was to then go back and compare what he had  other employers in other jobs that is that is correct now on that last step do you have any authority that says the individual ised inquiry needs to determine how he did with other employers who may well have different l bet lesser safety standards so in other words what difference does it make if he successfully worked at other jobs other than to say that he's a good worker if that work environment on the other shop floor simply had a lesser safety standards so in other words you're sort of importing the lowest common denominator safety standard into u s steel's employment practices and i'm trying to figure out where the authority for that comes from thank you ron of the of the authority for that is the case of keith the city of oakland and the reason that's authority is because in this case mr wolf was not measured  said we do not measure the impairment we measure the individual and i see what you're saying but the but the the inquiry was directed to mr wolf's impairment not to mr wolf his history his personal characteristics were not considered and i think what you're saying is that there's no difference between say setting up a standard that says a monocular person may not hold these jobs and saying that a deaf person may not be a lifeguard but it's the same thing you set up these seemingly objective criteria you test that person with respect to those criteria and if if they don't meet the criteria you rule them out without asking whether or not withstanding those impairment they can do the job that is that is correct though we would challenge the idea that the requirements themselves were objective rather we think that they are subjective which are based on stereotypes specifically mr wilkinson's experience playing baseball and his i don't i don't mean objective in terms of their corresponding i mean it's something you can test like it's not subjective whether a person is deaf or monocular you know it's an objective fact and then you check it all that is correct so the point here but they didn't check off therefore he can't have this job they went through several other inquiries to determine whether that monocular condition affected his ability to do this particular job did they not well yes we look to the rationale in terms of showing whether or not somebody regarded from a broad range of jobs but that is correct but the critical point here so what difference does it make whether somebody can play baseball as to whether they do or do not pose a risk on a on a shop floor with this sort of moving dangerous equipment i don't get that you know so well i don't either and it doesn't you know it doesn't matter it's like or you know it so i can ignore that on the broader oh right now what the only reason we brought that up was to show that this is the stereotype this was the this was the subjective opinion making process which got us here now understanding yes i think that that i think it's across so what about this standard in the federal reserve called the federal motor carrier law that they have i think very similar vision requirements for driving a federal motor carrier ok yes am i right about that oh yes you are going ok so i take it the way those work is after a lot of research they decided these are things companies have to do so the federal agency saying to companies you have to have these rules eligibility requirements for motor carrier drivers right correct so that doesn't involve an individual i think guess my commonsense way of looking at it but maybe i'm missing something i consider a shop floor where these forklifts where you have three hundred sixty degrees of potential risk way more dangerous and prone to accident than someone driving down highways watching for people in their lines passing their passing people or people coming across new highways matter a stand why the one is ok and the other isn't as a qualification i think that we can look at a case that was cited by defendant out of the ninth circuit the base case and that that said look you know the fact that there is a federal regulation for a different job can be evidence for them to meet  there for them to meet the standard however the weight of that evidence is a question of fact to be decided by a jury are these things as you're explaining which apply to long haul truck drivers interstate truck drivers are these are political to this  shop floor that is a question of fact in the test is whether you don't offer someone a job because of their disability post or in spite of it right and here the in spite of is what we have these requirements of certain vision requirements and it's for a public safety reason and proof that we're not making this up as a pretext for discrimination of these they use the same thing in a far less dangerous setting well we think that's an issue of fact as to whether or not it would be more dangerous or not and specially given the fact that he was able to perform a similar position for nineteen years we think that that is a question of fact for a jury let me explore that for just a second let's say you had two hypothetical applicants one had no prior experience in the steel industry similar shop floors dangers of one whatsoever the other one did and had successfully performed the job according to whatever the that employer's specifications were using the same standards that u s steel has here could u s steel then refused to hire the person who had no experience based upon the same testimony that we have absolutely or they could have a us steel they could write well i have to explain they could refuse to hire well so here the air then was that because this gentleman had prior experience you have to take that one additional step that we talked about earlier and explore how he was able to do the job and other in other locations  still responder yes the the answer that yes yes because you're so how would they do that so so the personnel department then would go out and find out what the standards were in the other plants and contact the employer and geez did this guy ever have any sort of problems and the those are all the types of inquiries that would be necessary for this individual as an inquiry as you formulate it no your hon or i think that the standards set forth in u s steel's own policy stating that these standards can take into account an employee's history of pass excessive job performance would be adequate we do say that they have to do more than they did my thing i may be asking this a similar question judge mckeague so imagine as an employer without any talk about prior jobs is it your view that this kind of requirement just always goes to a jury in other words you know a person person applies they don't get the job because they force requirement back or it's a tribal issue fact when you go to a jury and in that case the employer wins next case they say well we're still going to force this we think it's needed for public safety and it goes to a jury in that case they win just keeps going along that way i mean is that how it works for me to imagine every employee is exactly the same they're good people they've had lots of other jobs but the company says you know we're just public safety is winning out here in egypt just have different juries saying different things about whether the there was a violation well you know there are circumstances your honor where you know an individual would have you know with no ability to compensate we would concede that an example a blind individual is never going to be able to file an airplane but we think that employer does have to make an inquiry and we don't think it's always a question for a jury but they have to do something to actually reasonably your focus is on the individual eyes the inquiry as opposed to whether they you know their defense of whether you want to call business assess the or having a nondiscriminatory reason for not hiring that is correct that's our understanding of the keith case saying that they need to go beyond just the application let me put the point another way if you if we decide there's not a keek problem here which is to say there's not an individual is increased problem is the case over if you determine there is no individual inquiry problem in this instance what we think we would still look to whether or not mr wolf was treated in a disparate fashion thank you could afternoon tunis has worked for us steel we have course urge that the summary judgment of ruling be affirmed and this being to no ball i will start with the regarded as prong unless you have other questions that suit to move me away from that but we go back we go back to sutton that required some form for the major life activity of working if there is a misperception on that major life activity which is what they're claiming and that that the company actually thought he could not perform a broad range sutton said that the there should be evidence of the geographical area that he could work the number and types of jobs the similar skills of those in the geographic area should all be studied and none of that was put forward in the have told them no and you know it's kind of unclear what he means i can't tell if you saying his point of view is the whole point because the questions about the facility in question is do our jobs relate to the whole plan or the utility technicians jobs yeah and it's in big us isn't well if you read the entire i mean this is just plucked right out of the deposition and if you read the entire deposition i mean at that point he has as you pointed out he's the hiring manager for the utility to technician job that's the only thing that was considered here and the record is very clear in that so as the hiring person he testifies in his deposition that that job is performed all throughout the plant this is just one big moving part this plant is heavy industrial so they are all over the plant so we believe that he made it very clear when he said obviously i thought of our for a while looking at our jobs the only thing he was talking about in his deposition at all was utility technician job obstat does you i mean you could be talking about from the point of view he has as a hiring manager i told them no so i see so your point is when he says the whole facility he's not talking about all jobs in the facility just the fact that this individuals in the facility obviously not doing utility technician jobs but what we believe that you know the record is clear that there was only one job that he was ever looked at by everyone in the entire individualized inquiry and it was the utility right if you're right about the regarded as point your your theory is there's no way to claim at all because you just quote not disabled that's right that's right they they chose to proceed simply under the regarded as theory and there's no there's no  dispute on that and on pages eleven and twelve of his brief he lists the many jobs that he had in the steel industry so it's very much like sutton where they said those airline pilots could be copilots they can do other things in the airline industry so therefore they did not they were not precluded from a broad class of jobs well he by his own and brief lists out the other jobs in the steel industry that he has done and other jobs in correctional facilities and so he's not precluded from a broad class of jobs he simply precluded from this particular job and that doesn't meet the pre two thousand and nine nine amendments and such we also look to this court's ruling in man versus cow kra again looking at that kind of geographical evidence to show that broad class of jobs that is not in the record here in that case the plaintiff put out put forth evidence that he could perform fifty three percent of the jobs in the market by expert testimony this court said that that even that didn't meet the extremely high burden because he could he could do more than half of the jobs in the geographic area certainly this one phrase plucked out of john wilkinson's deposition  when read as a whole of what he was doing and what his jobs were cannot meet this very very high regard it is standard but if it does and if this court finds that it does then we move on to the individualized inquiry  which we do agree was made here and certainly there were objective measures his vision findings of no vision and one eye is undisputed they were weighed against a federal motor carrier act based guidelines to get that two easy rating and judge way to respond to your your question regarding keith we believe this is of a very different case from keith in keith there were seven different accommodations identified by the potential supervisor there was expert testimony that lifeguards use their vision for the zone of protection that they do and that this particular individual had the ability to hear through quickly or implants cries to his attention and so a very very different case and in the also in that case how does an individual as inquiry work if you have certain vision requirements you just say these are what they are is your view a good you have those requirements you give the person i test they don't satisfy him that's the end of the discussion so how this works well if the first of all the requirement has to be business assess it and we'll get to that but assuming that they are and  there is a good business reason or a reasonable reason for them in this case this is objective because you either meet twenty forty in one eye or you don't and here he did not there's no need for an individualized inquiry whether the person meets the standards established by the business and subsidy well and there is no case law that we have criteria that you formulated the person fails to meet those criteria nevertheless as a factual matter the person can do the job know what happens there we believe that under albertson the person doesn't get the job because albertson the u s supreme court stated that quote what you're describing is a qualification standard and a qualification standard like that that screens out individuals with a disability are acceptable as long as that standard is for is reasonably based upon the position and this was covered in this case through the testimony of dr cboe who related the business assessing the of this to the federal motor carrier act and the individual duties of the job that there is no individualized inquiry necessary there is an individualized inquiry as to whether the person meets the bona fide qualified qualification standard and so for example in in the how would a case where the the employer had what they said was a standard that they had to be have a certain strength and order to have the police department job in that case they didn't do an individualized inquiry and they just said oh they have aids and therefore that person is not strong enough that's the kind of individual eyes inquiry that needed to be done on that individual how strong are they do they meet those those business to sesame goals and it wasn't done and how they so if it if if the objective criteria is reasonable saying that you have to be able to hear then you don't have to go any further you don't have to  whether the person can nevertheless do the job that's right the reason that they wanted it wasn't reasonable there was evidence put out that the american red cross was certifying lifeguard's there was a university who were certifying lifeguards also who were deaf so the qualification standard the albertsons standard wasn't reasonable reasonable i mean there would certainly be difference of opinion on whether it's reasonable to require that somebody be able to hear so what is the what's the standard peru reasonable i mean if you have ten monocular people they can do these jobs even though you come up with some objective criteria i mean when does it become a jury question whether it's reasonable let's say you have people that can do the job why is it reasonable to exclude them and actually that the standard is business assessed city and its grounded in part on reasonable ness but there would have to be something in the record here to challenge that business to sesame and there very well could have been the two doctors that testified dr wanted a fact on that but there's nothing in this record on that instead all of all those physicians did was look subjectively not at us steel's operations or its reason for making the rule but it just looked to subjectively at this particular person and said well they could you know he can move his head a little bit and be able to do this and looking at it subjectively if you if you if there's nothing on the other side like there is here then albertson we maintain kicks in and the albertson rule for the u s supreme court is that reason there is the qualification standards are acceptable as long as they are found to be  what's the case that says that you define business necessity but reasonable well in order to have the business assess it either has to be under under l albertson it has to have a it has to the standards have to be a business assess a t and then monad took that out and required it there to be some evidence that there is a business assess it before that for that standard right i'm asking you where it's defined as reasonable i don't have a cite for that but there has to be something in the evidence challenging that business to ceci the employer as judge helmick pointed out isn't enough to say oh that this particular employee can do the job in there for this arbitrary standard is not necessary no one because no one has pointed in the record there is no evidence that this is an arbitrary standard the evidence is in the record and as judge helmick pointed out the employer met their burden of putting dr standard to keep everybody safe because then you need that standard because people who don't need it can't do the job properly and so if somebody presents evidence that look here's a person that doesn't meet the standard who can do the job properly that's evidence that you don't need that standard we believe that that is not what albertson required it just required a reason a qualification standard that was related to the job description so now it only has to be related you don't even have a reasonable those it has to be objectively related in some way  and certainly an issue of fact could be created on that it could be in the record by an affidavit on the other side by someone saying that this is not reasonable in the industry there is nothing here that we can point to that maybe viking industries or the other burger industries may have not been very safe places we don't know why he was able to work there or if he was doing the same job just making sure what the doctor knows so i mean this questioning with judge white i want to make sure this is the test of the a opposed to some other documentation statute so you can still not hire somebody even though they can perform the quote essential functions of the job the judge wanted to point the person can perform the essential function of job you can still not hire them if there's some medical problem that means they can't satisfy certain qualifications standards which are called a quote business a subsidy and all those words i've really a disparate impact case i mean this is really what they were what they argued below they never put in any evidence that someone similarly situated was treated differently but you don't have to do that in a disparate treatment case and a disparate treatment case you can just say  burdens on the defendant to establish it and then the plaintiff can come back and say no no no that's flawed for these reasons yes but the eighty eight itself says and i'm talking specifically in a disparate treatment case or forget what you think they were doing disparate treatment case if you have a business necessity it just doesn't matter as long as it's upheld it doesn't matter that the plaintiffs can satisfy the essential functions or features of the job yes and  foreman we want to be clear the u s still considered more than just the opinion of mr wilkinson in determining not to give mr wolf a job there so where else should we look on that point because they gave him they also considered to classifications that mr wolf or see one of them or so how would anyone think that he was could he was disabled and couldn't perform any job and how could anyone at this plant think that given that they had lots of binocular individuals this plant in los monocular vittles i thought there were other jobs not on this job but in other jobs i thought there were other people in the plant no no according to dr sabir they all worked in the office or most of them worked in the office so i do want to address that point why isn't that responsive to what i was saying if you're the point of disability you can't propose to do any jobs not just jobs in the plant can't do any jobs and if this company was hiring other people with monoc vision in they were in the back office i don't understand why that's not showing that they didn't regard people with an ocular vision as people that couldn't perform any jobs well the rationale behind it was that the monocular vision precluded him from performing any job which required average or above average visual acuity any job in which he would come within that we're just looking at a range here under sutton and we're just trying to expand it so they're looking at jobs which would keep him within six feet of machinery and  these are the and these are the other considerations which were made it wasn't just manufacturing store job and manufacturing for jobs the rationale going far beyond that any job which operated mobile equipment any job was required average or above average require a certain type of vision that's not saying people with binocular vision can't do any jobs yes but they measure the impairments and they found that that c is simply just a i'm sorry i need to collect myself on but they she refute the question i thought you were being helpful in saying all this evidence but every single piece of evidence you said was connecting monocular vision to a certain type of job nothing you said showed a view that if you have an ocular vision you can't do any jobs in this plant and that's that's what require it required as requires regarded as requires it's not it's not that you're regarded as having a disability as to this set of jobs it's your regarded as having a disability which is defined to mean you can't do any of these any jobs not these jobs any jobs well it's not any job  determining whether an individual substantially limited in the major life activity of working out there are two others so the standard sutton is significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes so what we're arguing is not that he was they regard him as being able to do any job but they were gardeners unable to do a broad range of jobs i'm getting sutton it answers this question to you favorably that you're allowed to slice it up into this class that sounds like your key point here that as long as it's a classification of jobs he's regarded as not being able to handle and it's a broad enough group that counts is regarded as disabled that's that's correct  you're right that is a statute the language is either a class a jobs or a broad range of jobs in various classes as compared to an individual who's not having comparable training skills and abilities i just want to clear up one of the thing to one of your arguments is the business assess a t doesn't apply here because this is not a disparate impact case correct correct assuming that we disagree with you on that and that also we find that it or one of its cousins also applies to disparate treatment are you are making are you making the argument here that there was no business necessity for the application of this monocular vision standard to this type of  the shop floor we are making the argument that that is an affirmative defense and there has been no showing which would carry us steel's burden of proof on that point and it therefore is a jury question what they have shown is they said look we we we mirrored these regulations for interstate truck drivers and our position is that is not enough to carry their burden of proof absolutely we think it is still in a matter for the trial of fact trial they also have wilkinson who was the supervisor of these utility technician workers but there's no indication that he was involved in creating that policy if the qualifications stan were talking about if we're on the same page i don't know that we are because if you have the guy that actually supervises the workers on that floor and says this is the these would be the dangers that would be posed by a monocular vision guy that seems to provide the arguably least the business assess the for the underlying rule whether he was involved in formulating or not so what am i missing there well i guess we're just looking to whether or not they've established enough evidence to prove the affirmative defense and we maintain that there's an issue of fact on that because the motor carrier regulations were unrelated and it goes to weight and we believe that mr wilkinson's basis for it was stereotype and not something we should be considered by this court what you're competing evidence besides the fact your client can do the job safely in your view well we have  experience doing the job safely when end of story you know what else oh well mr wolf i mean you know if you do not work in this facility but he has reviewed video of it of how things go on in this facility and said these are the same types of jobs that i did at the other plants we have his record of doing it we have the opinions of two physicians who indicate that he can perform his job safely and and again it's an affirmative defense for what i thought of affirmative defense only applies it was only relevant to people that came forward and said i can handle the essential features of this job and i thought the way this worked was you had someone come forward and say either themselves or with their doctor i can do these things and i can do them safely but that doesn't get you to a true jury trial if the defense says well we've just got this qualification it's a business assess a t and if you don't challenge that with competing evidence about that test that rule in this industry just doesn't matter that you've got lots of evidence that the individual can do this safely thank you understand in this case that is an affirmative defense right a plain text of the statute i got it ok only two disparate impact this is a disparate treatment case and what the district court did is they are well if you're wrong about that that there's a different test for disparate treatment versus different disparate impact is the case over  in the business the necessity defense is otherwise supported no your honor and there's two reasons for that the first is we do not think that there was a qualification standard enacted here we think they had no standard at all they just made it up well they have two different they have two different writings one of them supports us it says take into account history the other one doesn't say anything but there's been no evidence that these that one was in place and the other was not in place for they should be read in conjunction with each other up evidence to support it was a necessity ok all right well thank you both for listening to our questions and answering our we appreciate that it doesn't always happen and thank you for your brief the case will be submitted