U.S. Equal Employment Opportunity Commission v. Union Pacific Railroad Company
- Eric Tostrud
- 0:23-cv-03030
- U.S. District Court · District of Minnesota
- 10
In U.S. Equal Employment Opportunity Commission v. Union Pacific Railroad Company, Magistrate Judge Micko granted the EEOC's motion to compel Union Pacific to answer a discovery question about safety measures the railroad uses to reduce the risk of harm when an employee misses or misreads a train signal, finding that information relevant to Union Pacific's own 'direct threat' defense under the Americans with Disabilities Act.
Union Pacific Railroad Company (defendant), which is ordered to respond to a discovery question about its signal-safety mitigation measures. The ruling also affects the EEOC and the approximately 60 individual plaintiff-intervenors (current or former train conductors and engineers) who sued the railroad over its color vision testing practices.
What happened
In U.S. Equal Employment Opportunity Commission v. Union Pacific Railroad Company, the federal Equal Employment Opportunity Commission (EEOC) and dozens of individual employees sued Union Pacific under the Americans with Disabilities Act (ADA), alleging that the railroad's 'light cannon' color vision test unlawfully screens out train conductors and engineers — including some who could safely do their jobs — regardless of whether they actually pose a safety risk. During pretrial information-gathering (discovery), the EEOC sent Union Pacific a written question (Interrogatory 7) asking the railroad to describe any measures it has in place to reduce the risk of harm if an employee fails to accurately identify a railway signal. Union Pacific refused to answer, arguing the information was irrelevant because the federal railroad safety agency — not Union Pacific — had already decided that color vision testing is the required way to address signal-recognition risk.
The court rejected Union Pacific's argument on two grounds. First, the federal railroad regulations themselves allow engineers and conductors to be certified even if they fail a color vision acuity test, as long as a medical examiner concludes they can safely do the job — meaning the regulations do not treat color vision deficiency as an automatic, irrefutable safety disqualifier. Second, and more importantly, Union Pacific itself raised a 'direct threat' defense in its answer, claiming that employees who failed its color vision test posed a danger to themselves and others that could not be eliminated through reasonable accommodation. Under the ADA, evaluating a 'direct threat' defense requires examining multiple factors, including how likely the harm actually is to occur and how soon — factors that cannot be assessed without knowing what other safeguards are already in place.
Magistrate Judge Micko granted the EEOC's motion to compel and ordered Union Pacific to answer Interrogatory 7 within 14 days of the order. The court also held that the question is sufficiently focused — it asks only about measures addressing the specific risk of a missed or misread signal, not about Union Pacific's general safety practices — and is proportional to what is at stake in the case. If Union Pacific continues to claim any of the information is legally protected from disclosure (privileged), it must also produce a privilege log identifying what it is withholding and why.
The detailed version
- U.S. Equal Employment Opportunity Commission v. Union Pacific Railroad Company, No. 23-cv-3030 (ECT/DLM), District of Minnesota
- United States Magistrate Judge Douglas L. Micko
- September 18, 2025
Background
The EEOC, joined by approximately 60 individual plaintiff-intervenors, sued Union Pacific under the Americans with Disabilities Act of 1990 (ADA), asserting three counts: (1) disparate treatment of employees who failed the railroad's 'light cannon' color vision test; (2) use of an unlawful qualification standard because failing employees could still safely perform their jobs; and (3) unlawful medical inquiries directed at employees who failed the test. Union Pacific previously moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) (failure to state a claim), arguing that Federal Railroad Administration (FRA) regulations require color vision testing and therefore shield Union Pacific from ADA liability. Judge Tostrud denied that motion in its entirety, holding that the 'business necessity' defense — the argument that the test is job-related and consistent with business necessity — was not appropriate for resolution at the pleading stage and should be addressed at summary judgment. Union Pacific's answer reasserted business necessity and also raised a 'direct threat' defense under 42 U.S.C. § 12111(3) and 29 C.F.R. § 1630.2(r), asserting that affected employees posed a direct threat to health and safety that could not be eliminated by reasonable accommodation.
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 on relevance grounds, asserting the information had no tendency to make any fact of consequence more or less probable, and that signal-mitigation redundancies do not affect Union Pacific's obligation to comply with FRA color vision regulations. The EEOC moved to compel (Doc. 128). The court heard argument on August 26, 2025.
Analysis
Scope of discovery: The court applied the liberal discovery standard of Federal Rule of Civil Procedure 26(b)(1), which allows discovery of any nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case. The EEOC bore the initial burden of demonstrating relevance; if met, the burden shifted to Union Pacific to show lack of relevancy or undue burden.
FRA regulatory framework (Section I): The court rejected Union Pacific's argument that FRA regulations render mitigating measures irrelevant. While the FRA does require color vision acuity testing (49 C.F.R. Parts 240, 242), the regulations also provide pathways for certification even if an employee fails an approved color vision test, if a medical examiner concludes the person can safely perform the job. See 49 C.F.R. §§ 240.121(e); 242.117(j). The court noted it had already made this point in denying the motion to dismiss. Therefore, the FRA framework does not establish color vision deficiency as an irrefutable direct threat, and this argument was insufficient to resist discovery.
Direct threat defense (Section II): The court found Interrogatory 7 directly relevant to Union Pacific's own 'direct threat' defense. Under 29 C.F.R. § 1630.2(r), the 'direct threat' analysis is multifactored, requiring consideration of: (1) the duration of the risk; (2) the nature and severity of the possible harm; (3) the likelihood of the harm materializing; and (4) the imminence of the harm. The court held that factors (3) and (4) — likelihood and imminence — cannot be properly evaluated without knowing what safeguards exist to mitigate the risk of a missed-signal accident. The court declined to elevate the severity factor (the catastrophic potential harm of a train wreck) above the other factors so as to cut off discovery into those other factors, citing Brasier v. Union Pac. R.R. Co., 2023 WL 2754007 (D. Ariz. 2023), which similarly rejected Union Pacific's argument at the summary judgment stage. The court also noted that, at the hearing, Union Pacific suggested it was not pursuing a direct threat defense beyond its FRA-mandate argument, but that its Answer contained no such limitation, and where a defendant asserts a viable defense, discovery related to that defense is appropriate.
Proportionality and breadth (Section III): The court also rejected Union Pacific's concern, raised at oral argument, that Interrogatory 7 was too broad. The court found the question is cabined to measures 'adopted to mitigate the risk of harm if an employee fails to accurately identify, interpret, and comply with a railway signal' — not Union Pacific's general safety protocols — and is therefore sufficiently tailored and proportional.
Ruling
The court granted the EEOC's Motion to Compel in its entirety (Doc. 128). Union Pacific is ordered to answer Interrogatory 7 within 14 days of the order and, if it maintains privilege assertions, must simultaneously produce a privilege log compliant with Federal Rule of Civil Procedure 26(b)(5)(A)(ii).
Reviewer note from the AI+
Read the full 10-page opinion on CourtListener, the free public archive maintained by the Free Law Project.