(dissenting).
I respectfully dissent. Although it may well be that visual acuity without any corrective lenses is a bona fide occupational qualification for the job of detention deputy, that is not the question before us. Neither is the wisdom of the commissioner’s finding of probable cause to believe that Hennepin County discriminated against Allan Tervo on the basis of disability. The question is whether the Minnesota Human Rights Act authorizes the commissioner of human rights to inquire into the bona fides of the occupational qualification set by Hennepin County. In my opinion the Act does just that.
Let me say at the outset that much of the difficulty in this case seems to me to be the product of a conflict between statutory criteria and ordinary, everyday usage and perspective. For example, in the ordinary course of things neither the myopic person nor anyone else is likely to consider myopia a disability if normal or nearly normal vision can be achieved through the use of corrective lenses. Common experience tells us that many people see perfectly well when wearing eyeglasses or contact lenses so that their impairment does not interfere with ordinary activities. If, on the other hand, a defective condition of the eye is not amenable to correction, the visual impairment may significantly interfere with carrying on important life activities. In that case, the visual impairment constitutes a disability. In short, an impairment such as Mr. Tervo’s, reduced to normalcy by corrective lenses, or some other impairment remedied by prosthesis or by medication does not demonstrate that actual lack of “competent power, strength, or physical or mental ability,” or the incapacity to pen-form an occupation, which is the commonly understood definition of “disability.” The American College Dictionary 343 (1962).
The legislative definition of the term “disability” adopted for purposes of Minnesota’s Human Rights Act, however, varies considerably from the common usage or dictionary definition. Minn.Stat. § 363.01, subd. 25 (1984), defines “disability” in these words:
[A]ny condition or characteristic that renders a person a disabled person. A disabled person is any person who (1) has a physical or mental impairment which substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.
To say, as does Hennepin County and the majority, that Hennepin County did not regard Tervo as having a disability, that he simply failed to meet Hennepin County’s uncorrected vision standard, is mere sophistry. Clearly, Hennepin County regards Mr. Tervo’s uncorrected vision of 20/200 as disabling him from performing the duties of a detention deputy; why else does it defend its uncorrected vision standard of 20/100 as “necessary to protect the safety of employees and prisoners”?
Indeed, once Tervo removes his corrective lenses he is a person who has a physical impairment which substantially limits one or more major life activities, thus meeting the first prong of the statutory definition. As Hennepin County’s medical examiner puts it, without corrective lenses Tervo is “legally blind.”
Quite frankly, from the standpoint of the commissioner’s authority to inquire into the matter, I see little distinction between Hen-nepin County’s insistence on testing Ter-vo’s eyesight without the benefit of his corrective lenses and a hypothetical school district’s denial of a teaching position to a one-legged applicant because it considers a teacher’s ability to patrol halls and play*115ground without benefit of either prosthesis or crutches a job qualification necessary to protect the safety of pupils and fellow teachers. I have not the least doubt that the majority would recognize the commissioner’s right to question the bona fides of the school district’s qualification standard on the ground either that the school district regarded the teacher applicant’s less common impairment as a disability or that when deprived of equipment designed to correct or ameliorate the effects of an impairment, the candidate has an actual disability.
Nor do I doubt that the majority would acknowledge the commissioner’s authority pursuant to the Minnesota Human Rights Act to assert a claim that the commissioner of highways had unlawfully discriminated against any citizen who is possessed of normal visual acuity when wearing corrective lenses but who has been denied a driver’s license on the ground that the citizen’s uncorrected vision did not meet a standard set by the highway department.
To put it another way, I think the focus of the majority’s attention has been diverted from the actual issue in this case by the fact that Tervo’s impairment is one which not only afflicts a large percentage of the population but can be reduced to normalcy by the use of a device so common that it is virtually unnoticeable, and also by the fact that the majority assumes that Hennepin County’s job requirement is necessary to protect the safety of employees and prisoners. That an impairment is common and amenable to correction does not make it any the less disabling if the employer deprives the impaired person of the corrective device in testing qualifications for a job. Moreover, although the fragility of eyeglasses and their vulnerability to breakage or being knocked off the wearer suggests the historical basis for setting a standard of uncorrected visual acuity as a job qualification for the position of detention deputy —with its potential for violent and even explosive working conditions — eyeglasses are no longer the only available corrective lenses. The improvement in contact lenses in recent years, their widespread use, including their use by participants in the most rugged contact sports, suggests that now may be the time for reconsideration. Certainly, that “we have always done it this way” or “everybody sets a similar standard” is not an adequate reason for denying the commissioner of the department of human services the right to scrutinize the policy.
Accordingly, I would not deny the commissioner a forum in which to raise the issue of unlawful discrimination but would hold that he has raised fact issues which preclude summary disposition.