City of Columbus Civil Service Commission v. McGlone

Pfeifer, J. We hold that a person denied employment because of a physical impairment is not necessarily “handicapped” pursuant to former R.C. 4112.01(A)(13). To establish a prima facie case of handicap discrimination, the person seeking relief must demonstrate (1) that he or she was handicapped, (2) that an adverse employment action was taken by an employer, at least in part, because the individual was handicapped, and (3) that the person, though handicapped, can safely and substantially perform the essential functions of the job in question. Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St.3d 279, 281, 25 OBR 331, 333, 496 N.E.2d 478, 480. This case revolves around the first element, i.e., whether McGlone was handicapped. At the time this case arose, the predecessor to the current R.C. 4112.01(A)(13) was .in effect, and it defined “handicap” as follows: “ ‘Handicap’ means a medically diagnosable, abnormal condition which is expected to continue for a considerable length of time, whether correctable or uncorrectable by good medical practice, which can reasonably be expected to limit the person’s functional ability, including, but not limited to, seeing, hearing, thinking, ambulating, climbing, descending, lifting, grasping, sitting, rising, any — 572 — related function, or any limitation due to weakness and significantly decreased endurance, so that he cannot perform his everyday routine living and working without significantly increased hardship and vulnerability to what are considered the everyday obstacles and hazards encountered by the non-handicapped.” 143 Ohio Laws, Part III, 4156. In the current version of R.C. 4112.01(A)(13), even if a person is not handicapped, he can gain the protection of handicap discrimination laws if he is “regarded [by an employer] as having a physical or mental impairment.” While the “regarded as handicapped” language was not part of the statute when this case arose, the pertinent Administrative Code section in effect at the time, Ohio Adm.Code 4112-5-02(H), included in its definition of a “handicapped person” “any person who is regarded as handicapped by a respondent.” We therefore find that it was appropriate for the OCRC and the reviewing courts to consider whether the city perceived McGlone as handicapped. The question before this court then is whether a person can be foreclosed from a particular job based upon a physical impairment without at the same time being handicapped, or perceived as handicapped, under former R.C. 4112.01(A)(13), and therefore due the protections of the Ohio Civil Rights Act. We find that McGlone was neither handicapped nor perceived as handicapped by the city. To find that McGlone was handicapped, we would have to conclude that his nearsightedness was a “medically diagnosable, abnormal condition which is expected to continue for a considerable length of time * * * which can reasonably be expected to limit [his] functional ability * * * so that he cannot perform his everyday routine living and working without significantly increased hardship and vulnerability to what are considered the everyday obstacles and hazards encountered by the nonhandicapped.” There is no dispute that McGlone’s 20/100 vision is a medically diagnosable condition that is expected to continue. Whether that condition limits his functional ability so that he cannot perform his everyday routine living and working without significantly increased hardship is another matter. The record shows that McGlone leads a normal life. The fact that he wears eyeglasses or contact lenses is not a significant hardship. It is a common burden shared by millions, including a majority of this court. McGlone’s nearsightedness has led to one major hardship in his life, his inability to become a firefighter. But the statute speaks in terms of “everyday routine living and working.” It is a broad reference to a general quality of life. The handicap discrimination statute was designed to protect those who live with a handicap that significantly affects the way they live their lives on a day-to-day basis. — 573 — The federal Americans with Disabilities Act (“ADA”) is similar to the Ohio handicap discrimination law. It defines a disability as a “physical or mental impairment that substantially limits one or more of the major life activities of [an] individual.” Section 12102(2)(A), Title 42, U.S.Code. We can look to regulations and cases interpreting the federal Act for guidance in our interpretation of Ohio law. Little Forest Med. Ctr. v. Ohio Civ. Rights Comm. (1991), 61 Ohio St.3d 607, 575 N.E.2d 1164. In its interpretation of the ADA, Section 1630.2(j)(3), Title 29, C.F.R. discusses what factors should be considered in determining whether an individual is substantially limited in a major life activity: ‘With respect to the major life activity of working— “(i) The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” (Emphasis added.) There is no evidence that McGlone’s vision disqualified him from a class of jobs or a wide range of jobs. The city merely precluded him from one position, firefighter. In Bridges v. Bossier (C.A.5, 1996), 92 F.3d 329, the court held that an applicant who was disqualified from performing firefighting jobs for the city based on a mild form of hemophilia was not disabled under the ADA, since the field of firefighting jobs was too narrow a field to constitute a “class of jobs.” We agree with the Bridges court’s interpretation that the position of firefighter does not constitute a class of jobs, but is merely one job. We further conclude that the inability to perform a single job does not present significantly increased hardship to a person’s everyday routine living and working. Other federal courts have refused to find that nearsightedness constitutes a disability. In Sutton v. United Air Lines, Inc. (C.A.10, 1997), 130 F.3d 893, plaintiffs, twin sisters, were denied employment by United Air Lines for failure to have uncorreeted vision of 20/100 or better in each eye. The Sutton court found that the impairment did not substantially limit a major life activity, and that the sisters were not disabled. In Chandler v. Dallas (C.A.5, 1993), 2 F.3d 1385, 1390, the court held that a person is not handicapped if his vision can be corrected to 20/200. In Joyce v. Suffolk Cty. (E.D.N.Y.1996), 911 F.Supp. 92, a plaintiff denied a job as a police officer because of impaired eyesight was found not to have a disability. See, also, Walker v. Aberdeen-Monroe Cty. Hosp. (N.D.Miss.1993), 838 F.Supp. 285; Trembczsynski v. Calumet City (Aug. 31, 1987), N.D.Ill. No. 87 C 0961, unreported, 1987 WL 16604. — 574 — We conclude that McGlone’s 20/100 vision is not a handicap under the statute. His vision problem did not create significantly increased hardship in McGlone’s functional ability to perform his everyday living and working. We further conclude that the city did not perceive McGlone as handicapped. We stated above that the inability to perform a single job because of an abnormal condition does not transform that condition into a handicap. The city in this case considered McGlone nearsighted, not handicapped, merely lacking a single physical requirement for a single job. For McGlone to succeed on a theory of perceived handicap, the city would have had to consider McGlone’s nearsightedness as foreclosing him from a class of jobs. There is no evidence that the city had such a perception. Accordingly, we reverse the judgment of the court of appeals in its entirety. Judgment reversed. Moyer, C.J., F.E. Sweeney, Cook and Lundberg Stratton, JJ., concur. Resnick, J., concurs in judgment only. Douglas, J., dissents.