UPDATE: Ninth Circuit Court of Appeals En Banc Revisits Case Involving Employer’s Policy Of Excluding Hearing Impaired Individuals From Driver Positions

In Bates v. United Parcel Service, Inc., (— F.3d —, 2007 WL 4554016, C.A.9 (Cal.), Dec. 28, 2007), the United States Court of Appeals for the Ninth Circuit sitting en banc granted rehearing in a case where an employer categorically excluded individuals from obtaining employment as drivers because they could not pass a United States Department of Transportation (“DOT”) hearing standard that applies only to higher-weight vehicles than the drivers would be driving for the employer. A panel from the Ninth Circuit previously held that employer’s policy of excluding such individuals violated the Americans with Disabilities Act (“ADA”) because the employer could not show that the use of the hearing standard is job-related and consistent with business necessity. On rehearing, the Court of Appeals sitting en banc vacated the decision that employer’s policy violated the ADA and remanded the case back to the district court for additional fact finding and analysis.


United Parcel Service, Inc. (“UPS”), requires that its package-car drivers complete an application, be at least twenty-one years of age, possess a valid driver’s license, have a clean driving record, pass a road test, and pass the physical exam that the DOT requires for drivers of commercial vehicles. The DOT physical includes a hearing standard that it requires to be met by those individuals driving a vehicle with a gross vehicle weight of at least 10,001 pounds. UPS requires all drivers to meet the DOT hearing standard, even those individuals driving vehicles with a gross weight of less than 10,001 pounds. A group of individuals who were employed by UPS or had submitted an application for employment (collectively, “Employees”) filed a lawsuit asserting that UPS’s policy that required all drivers to meet the DOT hearing standard violated the ADA. The district court found that UPS’s policy violated the ADA and UPS appealed. A panel for the Ninth Circuit Court of Appeals held that UPS’s policy of categorically excluding deaf drivers violates the ADA. The Ninth Circuit Court of Appeals granted rehearing and the case was heard by the court sitting en banc.


The Court of Appeals reversed the decision of the trial court but did not reach the issue of whether UPS violated the ADA. Instead, the court remanded the matter back to the trial court for further consideration in light of its opinion on rehearing.

Burden of Establishing “Disability”

Under the ADA, an employee or potential employee has the burden of showing that he or she (1) is disabled within the meaning of the Act, (2) is a “qualified individual with a disability,” and (3) was discriminated against because of his or her disability. There is no dispute that the Employees who suffered from a hearing impairment are disabled within the meaning of the ADA.

A “qualified individual” is one who has a disability and “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). “Essential functions” are defined as those “fundamental job duties of the employment position . . . not includ[ing] the marginal functions of the position.” Discrimination occurs where selection criteria or
qualification standards, “screen out or tend to screen out an individual, with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria . . . is shown to be job-related for the position in question and is consistent with business necessity.” 42 U.S.C. § 12112(b)(6).

If an employer disputes an employee’s claim that he or she can perform the essential functions of the job, the employer must put forth evidence establishing the essential functions. UPS and Employees agreed that the two essential functions of the position of package car driver are “(1) ‘the ability to communicate effectively’ and (2) ‘the ability to drive safely.'” The crucial question before the court was whether Employees had the ability to drive safely.

UPS linked hearing with safe driving and, therefore, it bears the burden of proving the link between hearing and safe driving. Employees “bear the ultimate burden to show that they are qualified to perform the essential function of safely driving a package car.” However, “when an employer asserts a blanket safety-based qualification standard—beyond the essential job function—that is not mandated by law and that qualification standard screens out or tends to screen out an individual with a disability” it is the employer who must show that the standard is “job-related and consistent with business necessity, and that performance cannot be achieved through reasonable accommodation.”
Therefore, an employee is not required to invalidate a safety-based qualification standard imposed by the employer. Here, Employees are not required to disprove the UPS’s assertion that they must pass the DOT hearing standard in order to be a safe driver. What Employees are required to prove is that they individually meet the basis qualifications that are needed to drive a package car safely and that they are qualified individuals.

If Employees can prove that they individually can perform the essential functions of the job, either with or without a reasonable accommodation, then they have met their burden to show they are qualified. Here, the district court did not explicitly analyze whether Employees are qualified individuals and whether they are capable of performing the essential function of driving a package car safely. Accordingly, the Court of Appeals remanded the matter back to the trial court so that Employees can prove that they are qualified and then a reasonable accommodation can be made.

Burden of Establishing Discriminatory Motive

Besides showing that he or she is a qualified individual, an employee also bears the burden of showing that an employer discriminated against him or her because of a disability. The hearing standard imposed by UPS “is a facially discriminatory qualification standard because it focuses directly on an individual’s disabling or potentially disabling condition.” Therefore, the hearing standard imposed here falls squarely within the definition of discrimination under the ADA, and violates the ADA unless UPS can show a valid defense to its application of the DOT hearing standard. An employer may assert a “business necessity” defense to a claim of discrimination based on a disability. To successfully assert this defense, an employer must show “the
qualification standard is (1) ‘job-related,’ (2) ‘consistent with business necessity,’ and (3) that ‘performance cannot be accomplished by reasonable accommodation.’” The Court of Appeals had addressed the business necessity defense in Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir. 2001), and there concluded that there is a “bona fide occupational qualification” (“BFOQ”) safety standard requirement under the ADA. Here, the Court of Appeals sitting en banc rejected this concept and overturned Morton to the extent that the case imposes a BFOQ standard under the ADA. The court found that the BOFQ standard cannot be applied and that a court must analyze the business necessity defense under each of three components previously listed in this paragraph.

An employer proves that a standard is job-related by showing “the qualification standard fairly and accurately measures the individual’s actual ability to perform the essential functions of the job.” If every person excluded by the standard is also disabled, “an employer must demonstrate a predictive or significant correlation between the qualification and performance of the job’s essential functions.” To show that the standard is “consistent with business necessity,” the employer must show that the standard substantially promotes the business’s needs. To show that “performance cannot be accomplished by reasonable accommodation,” an employer must show either that (1) “no reasonable accommodation currently available would cure the performance efficiency,” or (2) “such reasonable accommodation poses an ‘undue hardship’ on the employer.”

Because the district court relied on Morton and failed to analyze the business necessity defense under the statutory framework, the Court of Appeals concluded that it was required to vacate the lower court’s decision and remand so that the district court could analyze UPS’s defense under the statutory framework.

The court also overruled Morton to the extent that it suggests or is interpreted to hold that UPS is not entitled to rely on the DOT standard. The court stated, “UPS is entitled to use as some evidence of its business necessity defense the fact that it relied on a government safety standard, even where the standard is not applicable to the category of conduct at issue.” However, the court also stated, “The parallel consideration applies to an employee; that is, an employee may offer as evidence challenging the validity or applicability of a safety standard the government’s refusal to adopt such standard to govern the conduct at issue.” Although not dispositive on the issue of whether the hearing standard meets the three factors for consideration in the business necessity defense, “UPS’s reliance on the government safety standard with respect to other vehicles in its fleet should be entitled to some consideration as a safety benchmark.”

The court further held that the lower court must reanalyze Employees’ claims of discrimination under California’s Fair Employment and Housing Act. It also held that Employee’s argument that UPS violated the Unruh Act was foreclosed by a recent decision of the Court of Appeals which held that such Act does not incorporate the employment discrimination provisions of the ADA.