Friday, May 25, 2001

Island Air wins
reversal of suit
by 1-eyed pilot

Circuit Court reverses a
previous ruling that claimed
the pilot was discriminated against

By Debra Barayuga

A Circuit Court judge has reversed a Hawaii Civil Rights Commission's order requiring Aloha Island Air to hire a pilot who can't see out of his left eye and pay him $1.4 million in an employment discrimination claim.

The commission had ruled last November that the airline had discriminated against Bruce Pied when they refused to hire him because of his disability. Island Air appealed.

Circuit Judge Eden Elizabeth Hifo ruled yesterday that Pied was not disabled because his monocular vision did not substantially limit any major life activity, the first of a two-part definition of "disability" under state law.

"I think the record is devoid of any facts constituting substantial limitation on life functions."

She also found that Island Air did not "perceive" him to be disabled -- the second criteria -- and therefore, he was not covered under the statute and cannot claim that the airline discriminated in refusing to hire him.

While Island Air had a policy that required corrected 20/20 vision and that its chief pilot had acknowledged that a monocular person does not see as well as someone who can see with both eyes, it was not sufficient proof that the airline viewed Pied as substantially limited in seeing, Hifo noted.

Ultimately the Hawaii Supreme Court will make the final ruling, she said, noting that the justices will review the record without deferring to her findings.

David Simons, Pied's attorney said he was disappointed in the court's decision but believes when the Hawaii Supreme Court conducts its review, "they will find the commission was correct."

The court essentially found that "people who can't see out of one of two eyes have no substantial limitation on their vision" -- directly contradicting the ruling by the hearings examiner and the five commissioners, he said.

Island Air had appealed the commission's decision contending that the commission erred in finding Pied disabled.

The airline said Pied learned to compensate for his reduced peripheral vision and inability to see depth.

Pied has testified that he can see better than many of the pilots he has flown with and that being monocular doesn't prevent him from activities such as baseball or driving, said Island Air attorney Richard Rand.

Pied flies B-747 aircraft, the largest commercial plane in the world. He got his pilot's license in 1987 and has flown tour flights and commercial passenger flights for Air Samoa before he applied to Island Air in 1990. He is certified as a pilot by the Federal Aviation Administration.

There's no question Pied is well-qualified to fly, said John Ishihara of the Civil Rights Commission. The key to the case is Island Air's admitted policy against hiring monocular pilots, which goes back to 1989 when Island Air's founder instituted it, he said.

"They didn't look at his ability, they looked at his disability and rejected him because of that," Ishihara said, calling this a "classic disability discrimination case."

Under state law, Pied fits the definition of disabled because he has a physical impairment that substantially limits a major life activity -- seeing, the commission said. He lost sight in his left eye because of a virus when he was 18-years-old. His peripheral vision is 15 percent less than a person with binocular vision and he cannot see three-dimensionally.

While Pied has learned to compensate for his inabilities by trying to guess distances, he still cannot see depth, the commission argued, and is still substantially limited in his ability to see.

The commission disagrees with many of the substantive points in Hifo's decision, particularly with her contention that state antidiscrimination laws should be interpreted in the same way as federal courts, said William Hoshijo, executive director of the commission.

"It's of particular concern because we have a trend where we're seeing a very restrictive reading of civil rights protections by our current U.S. Supreme Court, so we really need to look to the states to provide protection of civil rights."

The U.S. Supreme Court, in a 5-4 decision, has previously ruled that mitigating factors should be considered in determining whether a person is disabled, contrary to state administrative rules on disability discrimination.

Under state rules, mitigating measures are not considered in determining whether an impairment substantially limits a major life activity.

Hifo, in her decision, noted that Pied had compensated for his impairment so that although he could not see through his left eye, under federal law, he could mitigate it so that he was not disabled and not limited in seeing.

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