Employee Cannot Challenge Railroad’s Vision Test Under the ADA

Takeaway: Certain transportation employers, such as railway companies, must comply with state and federal safety standards governing employee physical fitness and licensure. In this case, the court ruled that a railroad employee’s failure to pass a vision test administered by his employer rendered him unqualified to work and unprotected under the Americans with Disabilities Act (ADA).

The plaintiff worked as a railroad conductor for BNSF Railway for 15 years. In 2020, BNSF administered two vision tests designed to determine the plaintiff’s ability to distinguish colors. First, the plaintiff was given the Ishihara 14 plate clinical vision test. The Ishihara test requires individuals to distinguish between colors. The plaintiff was born with a color deficiency that affected his perception of the colors red and green. The plaintiff failed this test and never passed equivalent tests in the past during his tenure with BNSF Railway.

If a conductor applicant fails the Ishihara test, they may request administration of a second, different vision test. Every Class I railway, including BNSF, uses a Federal Railway Administration (FRA) approved field test if the applicant fails the first clinical vision test. The FRA is part of the U.S. Department of Transportation. At the plaintiff’s request, BNSF’s medical examiner further evaluated the plaintiff and administered a vision field test. The plaintiff also failed that test.  

Because the plaintiff failed the two vision tests and BNSF’s medical examiner did not determine that he could nevertheless safely conduct trains, BNSF did not recertify the plaintiff as a conductor. The FRA has an administrative review process that provides three levels of review, at which time it could determine that the field test did not comply with federal law or that the medical examiner needed to recertify the plaintiff. Yet the plaintiff did not appeal the decision.

Instead, he filed a disability discrimination charge with the Equal Employment Opportunity Commission (EEOC). The EEOC provided the plaintiff with a right to sue letter. The plaintiff sued BNSF, claiming it violated the ADA when it failed to recertify him as a conductor due to his purported disability: color vision deficiency.  

Accommodating Employees’ Disabilities

The plaintiff asserted that BNSF’s field tests did not mimic what he must see in the field as a conductor. Had the test accurately reflected real-life conditions, he would have passed. He also alleged that BNSF’s medical examiner should have recertified him based on his 15 years of experience with the railway, which proved he had sufficient eyesight to safely conduct a train.

BNSF moved for judgment on the pleadings. The district court granted that motion because the plaintiff was not a qualified individual under the ADA and because he did not use the FRA appeals process.

On appeal, the 5th U.S. Circuit Court of Appeals reasoned that conductor certification, including the attendant vision examinations, was not a job qualification of BNSF’s own devising. Instead, the requirement comes from federal law and binding FRA regulations. These include provisions of the Federal Railroad Safety Act, which authorized the secretary of Transportation to issue nationally uniform regulations and orders covering every area of railway safety.

The FRA regulations require railways to confirm that conductors possess the ability to recognize and distinguish between the colors of railroad signals, as demonstrated by successfully completing one of the tests. This requirement is not optional for BNSF.

While BNSF’s medical examiner chose the second test at his discretion, the FRA provides the sole authority to approve it. Thus, BNSF had to refuse to recertify the plaintiff and prohibit him from operating as a conductor because he did not meet the FRA’s certification requirements.

A dissenting judge, however, disagreed with this conclusion. He noted that the plaintiff alleged that BNSF used a discriminatory test to deny his recertification, asserting his condition had not changed nor had the applicable regulations. Only BNSF’s test changed. As a result, the judge argued that the plaintiff could establish that he was discriminated against and denied the accommodations he had been provided for the past 15 years with the same condition.

The majority, however, ruled the plaintiff’s only avenue to contest the results of the vision test was via an FRA appeal. It reasoned that applying the ADA in circumstances in which federal regulations mandate licensure or physical testing would place employers in an untenable position. If the employee cannot satisfy the federal requirements, the employer cannot allow them to work; yet the ADA could render the employer liable for failure to accommodate.

Because the 5th Circuit determined that employees who cannot satisfy safety regulations are not qualified under the ADA, it upheld the dismissal of the claims by the district court.

Turner v. BNSF Railway Co., 5th Cir., No. 24-10031 (May 14, 2025)

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.