On the Road Again--Wait, Not You! Driver Discrimination in America

Vol. 34 No. 3

By

Daniel B. Kohrman is a senior attorney with the AARP Foundation (an independent entity funded by and affiliated with AARP) in Washington, D.C., where he specializes in legal issues concerning discrimination against older persons in employment, transportation, and voting.

If trends featured in the mainstream media reflected reality, Americans would seem poised for big changes in where they live and how they get there. Movie stars now like to pose with a Prius, not a Porsche. “Smart Growth” is all the rage in political campaigns, especially in jurisdictions affected by suburban sprawl, fueled in turn by burgeoning roadways.

Living in residential clusters rather than far-flung subdivisions would save energy, foster community, support neigh?borhood shops and services, and preserve recreational green space. Such housing could employ “universal design,” a neo term suggesting homes should accommodate all comers, including people with disabilities, and should also meet our needs as we “age in place.” Imagine if clean, reliable, readily accessible “light rail” or bus lines moved commuters to jobs downtown and in suburbs!

Of course, this vision of a brave new, energy efficient, accessible America directly clashes with Americans’ love of their automobiles and so, with the romance of roaring off into the sunset. And in fact, in great expanses of the United States, especially in small towns and outer suburbs, life without a car is nearly unimaginable, for purely practical reasons.

As an advocate for older persons and people with disabilities, I see America’s reliance on autos as a blessing and a curse. For many seniors or people with disabilities, setting out on the road is a joy, or a cherished choice. But for others who cannot drive or afford a car and who are not well served by public transport, a “mobility enhanced” world, less reliant on the automobile, cannot come soon enough.

Driving While Aging

To countless older persons, driving is a point of pride, a source of independence, and an attractive option—to buses, trains, paratransit vans, or taxicabs. For so many, a car still is the way to work and thus a key to financial independence. For others, it is a social lifeline or a way to avoid being dependent in managing the basics, such as shopping for groceries, visiting the doctor, or conducting business at the bank.

Yet for elderly Americans who choose to drive or who have no choice but to drive, the challenges are many.

Every state has its own regime of licensing drivers. A few states now require older persons to renew their licenses often and include practical driving skills exams for older drivers. Illinois drivers between the ages of 81 and 86 can renew llicenses for two years; at age 87, they must start to renew every year. All drivers over age 75 must take a driving test. New Hampshire likewise requires a driving test for those 75 or above.

Generally, however, states do not impose age-based limits on the licensing of drivers. Still, a number limit the number of years for which older drivers may be licensed. Some test drivers’ vision at various ages ranging from 40 to 80. A few require older drivers to renew their license in person rather than by mail, presumably to weed out older drivers with lesser motivation to stay licensed.

But most states apply the same standards to drivers of all ages, and four expressly bar age alone as a basis for reexamining a driver’s license. A District of Columbia law permitting city officials to require testing of drivers over age 75 recently was repealed shortly after the officials began enforcing it more strictly than in the past, giving rise to charges that the District had begun to engage in age discrimination.

AARP (formerly the American Association of Retired Persons)—the national membership, service, and advocacy organization representing over thirty-nine million Americans aged 50 and older—has long focused on education in this arena rather than legislative or legal advocacy. Since 1969, the AARP has operated a driving safety course for older drivers. Currently thirty-six states and the District of Columbia have laws or regulations mandating discounts for drivers who complete that course. Roughly 700,000 people per year take the course in communities nationwide.

One focus of AARP driver training is “When to Stop Driving.” AARP’s course addresses this issue from the perspectives of older drivers and their friends and relatives. AARP assumes older persons want to remain driving only as long as it is safe to do so. AARP believes most older drivers can be relied upon to limit themselves when certain driving situations seem unsafe—and ultimately to stop driving altogether when driving generally feels unsafe.

Discrimination Facing Drivers with Disabilities

Drivers with disabilities may have greater need and also greater difficulty than older drivers in asserting civil rights protections against unfair treatment. People with disabilities often are required to undergo periodic evaluation from medical authorities (or treating physicians) and provide certification of their ability to drive. If such a person is in an accident, he or she is far more likely than a person without a disability to have his or her license suspended or revoked.

In some instances, disabilities may be associated with symptoms resembling inebriation, and this can be troublesome for drivers with such conditions. An example is insulin-treated diabetes. When experiencing a low blood sugar episode, some people may become disoriented. Police encountering such persons may confuse a need to ingest some form of fast-acting carbohydrate (e.g., orange juice or a candy bar) with the influence of alcohol or illegal drugs. They may mistakenly treat a case of medical exigency as a criminal matter. The American Diabetes Association has distributed a training videotape for police departments showing and explaining how to identify and respond to diabetes emergencies. All law enforcement agencies had access to similar training resources to clarify other disabling conditions potentially affecting members of the driving public.

Disability discrimination involving drivers of motor vehicles—usually trucks or airplanes, not cars—has achieved an unfortunate prominence in recent major court decisions under the Americans with Disabilities Act (ADA). One such employment discrimination case, Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), involved a truck driver. The U.S. Supreme Court declared that whether the petitioner’s high blood pressure amounted to a “disability” had to be evaluated taking into account any changes in his condition caused by the medication he took to ameliorate his symptoms. Ironically, the Court concluded that Murphy—who was fired because of the medication he took—was not disabled, and thus, was unable to sue when he lost his position because of the same medication. Another case decided at the same time, Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), centered on airline pilots. The Court held that pilots who had been denied the chance to fly worldwide routes due to their limited uncorrected vision could not pursue ADA claims because they did not have disabilities, taking into account correction of their eyesight with eyeglasses. In both instances, the Supreme Court issued extremely restrictive rulings construing quite narrowly the definition of “disability” under the ADA. As a result, the Court never considered the charges of workplace bias that led Murphy and Sutton to sue in the first place.

The gist of both decisions was that the plaintiffs were not disabled within the meaning of the federal statute on which they based their disability discrimination claims. Surely, one factor at issue in these cases—at least lurking in the background because the Court in neither case addressed the matter—was that Murphy and Sutton were asking the federal judiciary to permit them to perform transportation jobs raising issues of their own safety and that of members of the public.

Likewise, in the recent case of EEOC v. Schneider National, Inc., 481 F.3d 507 (7th Cir. 2007), judicial sympathy for fear of safety risks on the public roads—however illusory such risks may be in actual fact—seems to have been a key factor in a troubling opinion issued by Judge Richard Posner. In Schneider, the court permitted the nation’s largest trucking firm to discharge, without incurring any ADA liability whatsoever, a driver with an exemplary safety record because he had a rare medical condition. The court acknowledged that the driver controlled his condition with medication, yet sympathized with the employer because once before the company had another driver with the same rare condition—cardiogenic syncope—who drove a truck off an embankment to his death. No connection between accident and diagnosis was ever established.

Jerome Hoefner, the truck driver in Schnieder, took medication that reduced his risk of unsafe symptoms to a negligible level, just as Vaughn Murphy did. Yet both men were discharged by employers unwilling to recognize a right to perform work for which one is fully qualified, notwithstanding fears unrelated to a rational assessment of medical risk. The Schneider and Murphy courts ratified discriminatory decisions on grounds employers were justifiably—though irrationally—“risk averse,” and further, because Hoefner and Murphy, while sick enough to be fired, were not sick enough to have an ADA disability because of positive effects of medications they ingested. The contorted “logic” and blatant unfairness of ruling that an employer “is entitled to determine how much risk is too great for it to be willing to take,” Schneider, 481 F.3d at 510, even if that risk is conceded to be miniscule, is utterly inconsistent with Congress’s intent in enacting the ADA.

The harsh impact of decisions like Sutton and Murphy on qualified transportation workers helps explain strong bipartisan support for the ADA Restoration Act, H.R. 3195, introduced July 26, 2007, and its companion, S. 1881, both of which are pending in Congress and would overrule Sutton and its coconspirators in narrowing the ADA’s definition of disability, including Murphy and Toyota v. Williams, 534 U.S. 184 (2002). The Restoration Act would not allow unsafe drivers on the road. Rather, it would help the Suttons and Murphys to more easily establish a disability. And then they would have a chance to prove they can safely perform transportation jobs for which they apply.

Concluding Thoughts

In the past few years, a driver’s license has come to have ever greater implications for access to key aspects of basic American life. The Supreme Court has just taken a case concerning an Indiana law—like others in Georgia, Michigan, and Missouri—that limits the right to vote unless a potential voter shows photo identification, the most common form of which is a driver’s license. And of course, without photo identification, access to air travel and admission to federal office buildings is virtually impossible.

Further, access to drivers’ licenses has recently been swept up in the raging national debate over immigration. Eighteen states do not require license holders to be legal residents. Forty states demand that license applicants have a Social Security number but provide an alternative, often time-consuming, path to getting a license. One side argues that more restrictions are necessary to deter illegal immigration, while the other defends flexible policies as likely to reduce the number of persons who take to the road unlicensed, untested, and uninsured.

Increasingly, the Department of Motor Vehicles has come to rival the public school as the place where Americans stage battles over social policy. This is deeply misguided. Our public institutions have difficulty enough fulfilling their core functions without taking on new assignments at the outer limits of their expertise. And there is precious little consolation in the fact that those usually caught in the middle of fights over who may drive are not schoolchildren but adults. For those affected typically are members of other vulnerable groups: older persons of low income, many of whom have disabilities, and large shares of whom are persons of color or minority ethnic status. It turns out that “inclusion” of many seniors in the American mainstream will involve more than simply breaking down stereotypes. It will also require dismantling physical and logistical barriers that constrain older persons unable simply to turn the ignition and head out on the highway to partake of opportunities the rest of us take for granted.

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