                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-3108
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
                                              Plaintiff-Appellant,
                               v.

SCHNEIDER NATIONAL, INC.,
                                             Defendant-Appellee.
                        ____________
           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
            No. 04-875—William C. Griesbach, Judge.
                        ____________
    ARGUED FEBRUARY 13, 2007—DECIDED MARCH 21, 2007
                        ____________


  Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
  POSNER, Circuit Judge. In 2002, shortly after receiving
an award from his employer, the Schneider trucking
company, for having driven a million miles for the com-
pany without an avoidable accident, Jerome Hoefner had
a fainting spell and was diagnosed with a condition called
“neurocardiogenic syncope.” This is a disorder of the
nervous system that can produce a sudden drop in blood
pressure that in turn reduces the amount of blood reach-
ing the brain, causing the person with the disorder to faint.
Schneider’s policy is (with a possible exception discussed
2                                              No. 06-3108

later in this opinion) not to employ a truck driver who has
the disorder, although it is treatable with medicines
such as Florinef and does not prevent a person from
satisfying the safety standards required by federal law of
anyone who drives, on a public highway, a truck that
weighs (with its load) at least 26,001 pounds or is used to
transport hazardous materials or at least 16 passengers. 49
U.S.C. § 31136(a)(3); 49 C.F.R. §§ 383.5, 391.11(a).
  After being dismissed by Schneider, Hoefner obtained
a similar job with another trucking company. Never-
theless the EEOC brought suit on Hoefner’s behalf against
Schneider, contending that the company had fired him
because it mistakenly believes that neurocardiogenic
syncope is a disabling condition within the meaning of
the Americans with Disabilities Act, which among other
things forbids discrimination in employment against
persons mistakenly believed to be disabled. 42 U.S.C.
§ 12102(2)(C). The district court granted summary judg-
ment for Schneider, precipitating this appeal.
  There usually and here are two issues to resolve in such
a case. The first is whether the employer’s decision to
terminate or take some other adverse employment action
against the employee was motivated by a mistaken belief
that the condition precludes him from engaging in some
activity. If so, the second question is whether the activity
that the employer mistakenly believes the employee to be
disabled from engaging in is a “major life activit[y].” Id.,
§§ 12102(2)(A), (C). Suppose an employer mistakenly
thinks that a person who has a hernia cannot lift 150
pounds and therefore is disabled from working for a
moving company that specializes in moving refrigerators
and grand pianos. The lifting of 150 pounds is not a
major life activity. So unless the employer thought that a
No. 06-3108                                                3

hernia that prevented such lifting substantially limited a
life activity that is major—maybe the employer thinks
that anyone who can’t lift 150 pounds is incapable of any
type of gainful employment—the employee would not
be “regarded [by the employer] as having such an impair-
ment,” § 12102(2)(C), and so the employer would not have
violated the Act. E.g., Sutton v. United Air Lines, Inc., 527
U.S. 471, 489-91 (1999); Rooney v. Koch Air, LLC, 410 F.3d
376, 382 (7th Cir. 2005).
  The Commission’s case relies primarily on statements
by a nurse who heads Schneider’s occupational health
unit and believes that anyone with Hoefner’s condition
should be disqualified from driving Schneider’s trucks as
“a matter of safety and direct threat.” But the reason for
this belief, as she further explained and the Commission
does not question, is that two years before Hoefner’s
fainting spell another driver for Schneider, Michael
Kupsky, whom Schneider had hired shortly after Kupsky
had been diagnosed with neurocardiogenic syncope while
driving for another trucking company, had driven a
Schneider truck off a bridge and been killed. Schneider
was “advised that it appeared that [Kupsky] may have
fallen asleep” at the wheel. The incident precipitated the
company’s adoption of a “zero tolerance” policy for drivers
with neurocardiogenic syncope. The nurse stated that
“Schneider made the right decision after the Kupsky
accident . . . . [W]e don’t know what caused that accident.
We’ll never know. And Schneider is not going to take the
chance that . . . that horrible accident happens to anybody
else.” The executive who fired Hoefner echoed what the
nurse had said: “we simply cannot take the risk that
while driving, you would lose consciousness.”
 There is nothing to suggest that Schneider has a mistaken
understanding of neurocardiogenic syncope. It simply
4                                                 No. 06-3108

is unwilling to risk a repetition (a possible repetition, since
Kupsky’s autopsy could not determine whether he had
fainted and if so whether that was why he had veered off
the road) of the Kupsky calamity. The risk is not zero, as
the EEOC suggests, even if Florinef is totally efficacious,
because Hoefner could forget to take his medicine. Anyway
the drug is not totally efficacious. It merely reduces the
risk of dehydration, and that is only one risk factor for
neurocardiogenic syncope.
   No doubt the risk that a person afflicted with this
disorder will faint while driving is small, as otherwise
Hoefner wouldn’t be allowed to drive big trucks, as he
is, for the trucking company that with full knowledge of
his medical history hired him after Schneider fired him. But
Schneider is entitled to determine how much risk is
too great for it to be willing to take. “[A]n employer is
free to decide that physical characteristics or medical
conditions that do not rise to the level of an impair-
ment—such as one’s height, build, or singing voice—are
preferable to others, just as it is free to decide that some
limiting, but not substantially limiting, impairments make
individuals less than ideally suited for a job.” Sutton v.
United Air Lines, Inc., supra, 527 U.S. at 491. The fact that
another employer and, as in all such cases, the worker
himself are willing to assume a risk does not compel the
worker’s current employer to do likewise. Chevron U.S.A.
Inc. v. Echazabal, 536 U.S. 73 (2002).
  Schneider is the nation’s largest truck company, employ-
ing 13,000 drivers. The more drivers a company employs,
the greater the likelihood of the kind of accident that befell
Kupsky and could befall Hoefner. Suppose Schneider had
no policy against hiring drivers with neurocardiogenic
syncope. Then some number of the 13,000 would have
No. 06-3108                                                   5

the condition. The EEOC presented no estimate of what
that number would be, but syncope is common, “account-
ing for 3 percent of emergency room visits and 6 percent
of hospital admissions.” www.americanheart.org/
presenter.jhtml?identifier=4749. Suppose 2 percent of
Schneider’s drivers had it; that would be 260. The risk that
at least one of them would have a Kupsky-type accident
could not be thought wholly negligible, and the liability
implications for Schneider (should there be an accident that
killed or injured someone other than the driver, whose
rights against Schneider would be limited to workers’
compensation) could be calamitous. The victims’ lawyers
would wave the Kupsky accident in front of the jury,
asking it to award punitive damages because the com-
pany had continued to employ drivers with neurocardio-
genic syncope after having been warned by Kupsky’s
accident. The argument for punitive damages would be
that employing Hoefner in the wake of Kupsky’s accident
showed that Schneider had acted in the face of a known
risk and was therefore reckless. E.g., State Farm Mutual
Automobile Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003);
Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672, 674-75
(7th Cir. 2003); Johnson v. Colt Industries Operating Corp., 797
F.2d 1530, 1533-34 (10th Cir. 1986).
  The argument might not succeed; the risk might be
deemed insufficiently large to make Schneider reckless for
not eliminating it by barring drivers who have neuro-
cardiogenic syncope. But once burned, twice shy. Because
of Kupsky’s unfortunate accident, Schneider may be
excessively risk averse, as United Air Lines and other
airlines (Sutton v. United Air Lines, Inc., 130 F.3d 893, 903-04
(10th Cir. 1997), aff’d 527 U.S. 471 (1999)) may be in
refusing to hire pilots who do not have at least 20-100
6                                                 No. 06-3108

uncorrected vision. 527 U.S. at 475-76. But as there is no
evidence that Schneider exaggerates the severity of
Hoefner’s condition and the risk he poses as a driver, there
is no violation of the Americans with Disabilities Act.
Cassimy v. Board of Education, 461 F.3d 932, 937 (7th Cir.
2006); Ogborn v. United Food & Commercial Workers Union,
305 F.3d 763, 767-68 (7th Cir. 2002); Katz v. City Metal Co.,
87 F.3d 26, 32-33 (1st Cir. 1996).
   The EEOC has confused risk with risk aversion. Two
companies might each correctly believe that the risk of a
particular type of accident was 1 in 10,000, yet one com-
pany, perhaps because it was small, financially fragile,
owned by a trust, or as in this case had had an exper-
ience of the risk materializing, might be unwilling to
assume the risk. That would be a decision irrelevant to
liability under the Americans with Disabilities Act, even if
that company’s degree of risk aversion was “unique” in its
industry. EEOC v. J.B. Hunt Transport, Inc., 321 F.3d 69, 76
(2d Cir. 2003).
  But if this is wrong, the EEOC still must lose because
there is no evidence that Schneider considers neuro-
cardiogenic syncope to impair any “life activity” other than
driving a truck for Schneider, and perhaps for some
other truck companies (we do not know whether there
are any) that like Schneider have safety standards higher
than the minimum required by the federal government.
That is too esoteric a capability to be judged a “major” life
activity. If being able to drive a huge truck or a truck filled
with hazardous chemicals safely, or being able to fly a
plane or guide climbers to the summit of Mt. Everest, is
a major life activity, then virtually the entire population
of the United States is disabled, which would be a ridicu-
lous construction to place on the Americans with Disabili-
No. 06-3108                                                   7

ties Act. “[E]ven assuming that working is a major life
activity”—as the EEOC believes, 29 C.F.R. § 1630.2(j)(3), but
the Supreme Court doubts, Sutton v. United Air Lines, Inc.,
supra, 527 U.S. at 492—“a claimant would be required to
show an inability to work in a ‘broad range of jobs,’ rather
than a specific job.” Toyota Motor Mfg. Inc. v. Williams, 534
U.S. 184, 200 (2002); see also Sutton v. United Air Lines, Inc.,
supra, 527 U.S. at 491; Kupstas v. City of Greenwood, 398 F.3d
609, 612-13 (7th Cir. 2005). In a “regarded as” case, such as
this, the claimant (here the EEOC on the claimant’s behalf)
would have to show that the employer believed that the
claimant had a condition that would disable him from
working in a broad range of jobs. Otherwise, minor physi-
cal defects would count as impairments of major life
activities.
  It is true that when it dismissed Hoefner, Schneider
invited him to apply for “non-driving” jobs with the
company. The Commission asks us to infer that Schneider
thought Hoefner disabled from driving any type of truck
for any type of trucking company; and the entire spec-
trum of truck driving might, we assume, be a “broad range
of jobs.” But the evidence is undisputed that no truck-
driving jobs that were not subject to the federal safety
standards were open at the time at Schneider. The qualifi-
cation concerning the type of truck driving is essential.
Schneider’s president testified that there is a chronic
shortage of “over the road” commercial truck drivers.
Even if this is taken to imply that there were vacancies at
Schneider for over-the-road drivers, such truck-driving
jobs, being subject to the federal safety standards, were
precisely the jobs for which drivers with neurocardiogenic
syncope are ineligible under Schneider’s risk-averse policy.
  Schneider does have truck-driving jobs at construction
sites, which are private property. But at argument Schnei-
8                                               No. 06-3108

der’s lawyer stated without contradiction that the trucks
it uses at those sites are so heavy that the federal safety
standards apply, for although the standards are ap-
plicable only to trucks driven on public roads there is no
way to get to or from a construction site without using
such roads. So the company’s policy applies to those truck-
driving jobs as well as to over-the-road trucking. Therefore
the fact that Schneider suggested that Hoefner apply for
nondriving jobs (at Schneider—he could and did land an
over-the-road job with another trucker, as we know) does
not imply that Schneider considered him disabled by his
medical condition from holding the kind of truck-driving
job to which the federal standards do not apply. If (as we
do not know) there were other truck-driving jobs at
Schneider, which did not require that the driver comply
with the federal safety standards, still, there were no
openings for such jobs.
  This is not to say that the absence of openings is, in and
of itself, exoneration for Schneider. For what if there
were no openings for Hoefner because Schneider believed
that no one with neurocardiogenic syncope should be
employed as a truck driver, period? Our point is only that
given the absence of openings, a mistaken belief that
Hoefner was disqualified from all driving jobs cannot be
inferred from the fact that the company didn’t offer him a
driving job. The EEOC, which bore the burden of proof,
did not try to clarify Schneider’s offer of nondriving jobs
by asking responsible officers of the company whether it
would have offered Hoefner a driving job if it had had an
opening for a driving job that didn’t require that the driver
satisfy federal safety standards. If the answer to the
hypothetical question had been “yes,” and there was no
contrary evidence, Schneider would be home free even if
No. 06-3108                                              9

it mistakenly believed that a person with neurocardio-
genic syncope should not be permitted to drive big trucks
or trucks that carry passengers or hazardous chemicals.
The case would be like Baulos v. Roadway Express Inc., 139
F.3d 1147, 1151-53 (7th Cir. 1998), which held that a
driver disabled by a sleep disorder only from driving
trucks that involve “sleeper duty” was not disabled within
the meaning of the Americans with Disabilities Act. That
was not a broad range of jobs. See also EEOC v. J.B. Hunt
Transport, Inc., supra, 321 F.3d at 74-77.
  If the answer to the hypothetical question had been
“no”—that is, if Schneider would not have employed
Hoefner after he was diagnosed with neurocardiogenic
syncope even in a truck-driving job that did not have to
meet federal safety standards—there would then have
been some basis for thinking that Schneider had exagger-
ated Hoefner’s condition and mistakenly thought him
disabled from a broad range of jobs even though he was
not. Even then, the EEOC would not have made its case,
because Schneider’s hypothetical admission would be
consistent with the company’s having decided to set a
higher safety standard than law or custom requires, as
United Air Lines had done. As we know from Sutton,
that is a decision the Act does not touch.
                                               AFFIRMED.
A true Copy:
       Teste:

                        _____________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit

                  USCA-02-C-0072—3-21-07
