Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—N.D. Cal.: Railroad conductors who failed color blindness tests did not establish ADA claims, (May 14, 2025)

By Cathleen Calhoun, J.D.

The railroad company submitted “evidence of a legitimate, non-discriminatory reason for the challenged adverse action” while the former employees’ evidence was lacking.

Union Pacific railroad company was entitled to summary judgment in an Americans with Disabilities Act (ADA) case brought by former railroad engineers who did not pass two eye exams that tested for color blindness, a federal district court has found. The court analyzed the disparate treatment claims presented under the ADA, since it noted that those claims were not precluded. However, in its analysis, the court reasoned that, even though sufficient evidence was submitted to raise a genuine issue as to the validity of one of the eye tests administered, such evidence alone was not sufficient to demonstrate that the former conductors were qualified (Donahue v. Union Pacific Railroad Co., No. 21-cv-00448-MMC (N.D. Cal. May 13, 2025)).

ADA claim. Although the former railroad engineers disputed that they are disabled, no disagreement existed about the fact that Union Pacific regarded them as disabled.

Federal rule. Under federal regulations, it is an essential function of conductors to “distinguish between the colors of railroad signals” (49 C.F.R. § 242.117(h)(3)) so as to “safely perform as a conductor” (49 C.F.R. § 242.117(j)). To show the ability to perform this essential function, conductors must successfully complete color vision testing in accordance with the scheme set forth by Federal Railroad Administration (FRA) regulations, the court noted.

Tests. Union Pacific adheres to the FRA’s regulations by administering an accepted initial test called the “Ishihara (14 plate)” where employees are presented with a book containing plates that have “colored numbers in a circle” and they must identify the number on each plate. Employees who make one or fewer errors on those plates pass and are certified. If an employee fails that test, a second test known as “The Light Cannon” is administered where employees are presented with twenty test signals, each of which is an “individual colored railroad wayside signal light” one at a time. Employees must identify the color of the test signal.

Qualification. The former employees submitted sufficient evidence to raise a genuine issue as to the validity of the Light Cannon test, but that evidence alone was not enough to show their qualification for the role. The court did not agree that a showing of years of experience without incident sufficed to show their qualifications. Passing tests in prior years also was not convincing.

Two of the three former conductors did not present sufficient evidence beyond the testing. One of the conductors did submit evidence that he passed the initial Ishihara (14 plate) test with three separate private optometrists. To support his argument that he lost his position because he was perceived as disabled, he argued that he made a prima facie case of discrimination based on direct evidence in the form of two documents, a “Statement of Sickness,” and a “Railroad Retirement Proof of Disability,” each signed by Union Pacific’s chief medical officer and each containing the statement, “Color vision deficit. Employee is medically cleared to work with permanent restrictions.” However, the court found that, read in context, the evidence of those two documents could not be viewed as directly reflecting a discriminatory animus since they were completed after the employee had taken and failed the two initial color vision tests. Union Pacific submitted evidence of a legitimate, non-discriminatory reason for the challenged adverse action, the employee’s failure to pass the Ishihara (14 plate) and the Light Cannon.

In summarizing, the court noted that the employee had the burden of persuading the court that the action of Union Pacific was due, in part or whole, to discriminatory intent. The court found uncontroverted evidence that suggested that no discrimination occurred and granted Union Pacific summary judgment.

The case is No. 21-cv-00448-MMC.

Judge: Chesney, M.

Attorneys: Barney Scott Gavin (Hildebrand McLeod & Nelson) for Justin Donahue. Benjamin H. Diessel (Wiggin and Dana) for Union Pacific Railroad Co.

Companies: Union Pacific Railroad Co.

Cases: DisabilityDiscrimination Discrimination Discharge CaliforniaNews