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EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: DOT Restrictions on Commercial Motor Vehicle Operators

July 24, 2012

Elaine M. Papp
Chief of the Office of Medical Programs
U.S. Department of Transportation
1200 New Jersey Avenue S.E.,
West Building Ground Floor, Rm W12-140
Washington D.C., 20590-001

Re: Docket No. FMCSA-2012-0154

Dear Ms. Papp:

The U.S. Equal Employment Opportunity Commission (EEOC or Commission) submits the following comments in response to the Federal Motor Carrier Safety Administration's (FMCSA or agency) Notice of applications for exemptions (Notice) published in the Federal Register on May 25, 2012.[1] In the Notice, the FMCSA announced that the National Association of the Deaf (NAD) applied for exemptions from the hearing requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) on behalf of 45 individuals. As stated in the Notice, the FMSCA has the authority to grant exemptions from the FMCSRs under 49 U.S.C. §§ 31315 and 31136(e), as amended by Section 4007 of the Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, June 9, 1998, 112 Stat. 107, 401).

Background

The Commission, as the agency responsible for enforcing Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., as amended by the ADA Amendments Act of 2008, has a longstanding interest in the rules and limitations that the FMCSA applies to commercial motor vehicle (CMV) drivers with physical impairments.[2] Additionally, as the lead federal agency responsible for coordinating with other federal agencies and departments on matters affecting equal employment opportunity, the Commission has an interest in the implementation of policies and procedures that may impact such issues.[3] As we have expressed to your agency in the past, we are interested in the use of Section 4007's waiver and exemption procedures to increase the employment opportunities in transportation for individuals with disabilities.[4]

Hearing Requirements Under the FMCSRs

The hearing requirement under the FMCSRs states that a person is physically qualified to drive a CMV in interstate commerce if that person:

First perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5--1951.[5]

Under Section 4007 of TEA-21, the FMCSA has the authority to grant an exemption from this requirement if it finds that the exemption would likely achieve a level of safety equivalent to or greater than the level that would be achieved without the exemption.[6] Section 4007 also states that in support of a request for an exemption, the requestor must submit an analysis of the safety impact of the requested exemption, and the specific countermeasures needed to ensure the required level of safety under the statute.[7] In the past, the EEOC has taken the position that Section 4007 provides for an individualized assessment consistent with the ADA.[8]

Under the ADA, a determination as to whether a person can perform his job safely is based on the "direct threat" standard. The ADA regulations define "direct threat" as a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation."[9] The determination of whether a person poses a direct threat must be based on an individualized assessment in accordance with "the most current medical knowledge and/or on the best available objective evidence."[10]

The Notice states that in support of its applications for the exemptions, the NAD cited and relied on a study that was requested by, and presented to, the FMCSA in 2008.[11] This study reached two conclusions about hearing loss and CMV driver safety: "(1) No studies that examined the relationship between hearing loss and crash risk exclusively among CMV drivers were identified; and (2) evidence from studies of the private driver license holder population does not support the contention that individuals with hearing impairment are at an increased risk for a crash."[12] Additionally, according to the NAD, the study also questioned the validity of the hearing standard's forced whisper test.[13]

Consistent with ADA requirements, we urge the FMCSA to give due consideration to the results of the 2008 hearing loss study as it represents current and objective evidence that will help the agency determine "whether a driver who cannot meet the hearing standard should be permitted to operate a CMV in interstate commerce."[14] The EEOC further urges the agency to adopt a flexible and comprehensive approach for those persons who do not meet the hearing standard by implementing a process that will consider all relevant medical evidence when determining whether to grant a CMV license.

If you have further questions or would like to discuss this matter, please feel free to call Mary Kay Mauren, Acting Assistant Legal Counsel (202-663-4643), Tanisha Wilburn, Acting Assistant Legal Counsel (202-663-4909), or Christopher Kuczynski, Acting Associate Legal Counsel (202-663-4665).

Sincerely,

/s/

Peggy R. Mastroianni
Legal Counsel


[1] 77 Fed. Reg. 31423. The initial deadline for submitting comments in response to the Notice was June 25, 2012, but the FMSCA extended the comment deadline to July 25, 2012. See 77 Fed. Reg. 38,128 (June 26, 2012).

[2] See 49 C.F.R. § 391.41(b)(1)-(11)(describing the physical qualification standards for various impairments, including those related to limb or extremity loss, diabetes, cardiovascular and respiratory conditions, blood pressure, arthritic or muscular disorders, psychiatric or mental disorders, vision and hearing).

[3] See generally Exec. Order No. 12067 (requiring EEO coordination and making the EEOC the lead agency responsible for such coordination).

[4] See, e.g., EEOC Informal Discussion Letter, ADA: Truck Drivers with Diabetes/Medical Screening Rules/Safety, http://www.eeoc.gov/eeoc/foia/letters/2006/ada_truck_with_diabetes.html (last visited July 16, 2012).

[5] 49 C.F.R. § 391.41(b)(11).

[6] 49 U.S.C. § 31315(b)(1).

[7] Id. § 31315(b)(3)(B)-(D).

[8] See EEOC Informal Discussion Letter, supra note 4 (stating that "Congress ma[de] clear the importance of grounding any employment decision restricting the employment opportunities of ITDM CMV drivers on a sound, individualized basis" and discussing the ADA's individualized assessment standard in the context of an employer's direct threat defense).

[9] 29 C.F.R. § 1630.2(r).

[10] Id.

[11] 77 Fed. Reg. at 31424.

[12] Id.

[13] Id. The NAD also reported that it "conducted over 100 hours of interviews with individuals who are deaf and hard of hearing and reports that deaf drivers face fewer distractions behind the wheel." Id.

[14] Id.