U.S. Equal Employment Opportunity Commission v. Union Pacific Railroad Company

Background

The U.S. Equal Employment Opportunity Commission (EEOC), joined by dozens of individual plaintiff-intervenors, sued Union Pacific Railroad Company under the Americans with Disabilities Act of 1990 (ADA). The EEOC alleges that Union Pacific uses a color vision screening device known as the 'light cannon' test to disqualify train conductors and engineers, even when those employees do not actually have a color vision deficiency and could safely perform their jobs. The complaint asserts three ADA claims: (1) disparate treatment of employees who fail the test; (2) use of an unlawful qualification standard because failing employees could still safely work; and (3) unlawful medical inquiries triggered by the test.

Union Pacific moved to dismiss the complaint, arguing that Federal Railroad Administration (FRA) regulations require color vision testing for conductors and engineers. The district court (Judge Tostrud) denied that motion, finding the 'business necessity' defense — the argument that the light cannon test is job-related and consistent with business necessity — was not suitable for dismissal at the pleading stage and should be addressed at summary judgment. Union Pacific then answered and raised, among other defenses, (1) business necessity and (2) 'direct threat' — the ADA defense that the employees at issue posed a direct threat to health and safety that could not be eliminated by reasonable accommodation. See 42 U.S.C. § 12111(3); 29 C.F.R. § 1630.2(r).

The Discovery Dispute

During discovery, the EEOC served Interrogatory 7, asking Union Pacific to 'describe any measures Union Pacific has adopted to mitigate the risk of harm if any employee fails to accurately identify, interpret, and comply with a railway signal.' Union Pacific objected and declined to provide a substantive response, asserting that such mitigating measures have no tendency to make any fact of consequence more or less probable, because the case is about whether the light cannon test is a valid color vision metric under FRA regulations — not about what happens when a signal is missed.

The EEOC filed a Motion to Compel (Doc. 128). The court heard oral argument on August 26, 2025.

Legal Standard

Federal Rule of Civil Procedure 26(b)(1) allows discovery of any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. Relevance under Rule 26 is construed broadly. The party seeking discovery bears the threshold burden of showing relevance; if that is met, the burden shifts to the resisting party to show lack of relevance or undue burden.

Analysis

I. The FRA's Regulatory Framework Does Not Make Mitigating Measures Irrelevant

Union Pacific argued that the FRA — not Union Pacific — determined that color vision deficiency poses a direct threat, and therefore no other safety measures are relevant. The court acknowledged that FRA regulations do require color vision testing for engineers and conductors (49 C.F.R. Parts 240, 242) and that the light cannon test can satisfy those standards.

However, the court found that Union Pacific ignored a critical provision: FRA regulations also allow certification of conductors and engineers who fail standard color vision tests if the railroad's medical examiner concludes the person can nonetheless safely operate a locomotive. See 49 C.F.R. §§ 240.121(e), 242.117(j). The court cited its prior order denying Union Pacific's motion to dismiss, which noted that the FRA's framework implies those who fail a test but can safely do the job may still be certified. The court therefore rejected Union Pacific's argument that the FRA had rendered color vision deficiency an irrefutable, per se direct threat to safety.

II. Union Pacific's Direct Threat Defense Opens the Door to Discovery on Mitigating Measures

The court found the more fundamental answer lies in Union Pacific's own pleading. Union Pacific asserted a 'direct threat' defense in its Answer, claiming that employees who failed the light cannon test 'posed a direct threat to health and safety of themselves and/or others that could not be eliminated by reasonable accommodation.' Under 29 C.F.R. § 1630.2(r), the direct threat analysis requires consideration of four factors: (1) the duration of the risk; (2) the nature and severity of the possible harm; (3) the likelihood that harm will materialize; and (4) the imminence of the harm.

The court held that a complete direct threat analysis — particularly factors three and four — cannot be conducted without knowing what mitigating safeguards are already in place. Union Pacific argued that the catastrophic nature of a potential train wreck (factor two) is so overwhelming that no other factor matters. The court declined to elevate one factor over the others in a discovery dispute, noting that such a merits determination is not appropriate at this stage. The court cited Brasier v. Union Pac. R.R. Co., 2023 WL 2754007 (D. Ariz. March 31, 2023), in which a court rejected a similar argument by Union Pacific at summary judgment and found the question best left for the jury.

The court also addressed Union Pacific's oral hearing position that it was not pursuing a direct threat defense beyond the FRA-mandated argument. The court found that position was not reflected in Union Pacific's Answer, which contained a broader direct threat defense, and held that where a defendant asserts a viable defense, discovery related to that defense is appropriate.

III. Interrogatory 7 Is Not Overbroad

Union Pacific raised a breadth concern at oral argument, suggesting that answering the interrogatory would require enumerating every safety measure the railroad uses. The court disagreed, finding that Interrogatory 7 is cabined specifically to measures 'adopted to mitigate the risk of harm if an employee fails to accurately identify, interpret, and comply with a railway signal' — not general safety protocols. The court found this scope sufficiently tailored to avoid undue burden and proportional to the needs of the case.

Disposition

The court granted the EEOC's Motion to Compel. Union Pacific is ordered to provide a substantive response to Interrogatory 7 within 14 days. To the extent Union Pacific maintains any privilege assertions from its prior objection, it must also produce a privilege log consistent with Federal Rule of Civil Procedure 26(b)(5)(A)(ii).