The Ninth U.S. Circuit Court of Appeals has held that United Parcel Service (UPS) violated the Americans with Disabilities Act (ADA) by refusing to hire drivers who could not pass a hearing test. See Bates v. UPS (October 10, 2006).
The Ninth U.S. Circuit Court of Appeals has held that United Parcel Service (UPS) violated the Americans with Disabilities Act (ADA) by refusing to hire drivers who could not pass a hearing test. See Bates v. UPS (October 10, 2006). The Ninth Circuit’s decision affirms a lower court’s determination that the company violated the ADA and affirms the certification of a class action against UPS based on the ADA violation.
In this case, a group of UPS employees and applicants claimed UPS violated the ADA when it excluded them from jobs as package car drivers because of their inability to pass the Department of Transportation’s (DOT) hearing test. The package car positions are awarded only to UPS employees who meet certain criteria, including seniority, having a clean driving record, passing a road test, and passing a DOT physical, which includes the DOT hearing test. Although the DOT only requires drivers of vehicles with a gross vehicle weight rating (GVWR) of 10,001 pounds or more to pass the hearing test, UPS required drivers of all package cars, regardless of GVWR, to pass the test.
The ADA prohibits a covered entity from discriminating against a qualified individual with a disability because of that person’s disability. Under the ADA, the term discriminate includes the use of qualification standards or other selection criteria that screen out or tend to screen out disabled individuals, unless the criteria is job related for the position in question and consistent with business necessity.
The Ninth Circuit held that the hearing test UPS used is a qualification standard that screens out individuals with disabilities. Relying, in part, on the ADA’s legislative history, the court held that the prohibition on the use of screening criteria applies to all disabled individuals, not just qualified individuals with a disability. Therefore, the court held that the complaining employees were not required to show that they were qualified for the jobs in question by showing that they could perform the jobs safely even though they could not pass the hearing test. Instead, the court held that UPS had the burden of proving that the use of the hearing test is job related and consistent with business necessity.
The court held that UPS did not meet its burden under the business necessity defense. To meet this burden, UPS had to establish that either “(1) substantially all [deaf drivers] present a higher risk of accidents than non-deaf drivers,” or (2) “there are no practical criteria for determining which deaf drivers present a heightened risk and which do not.” The court held that the evidence that UPS presented, that a hearing driver is generally safer than a non-hearing driver with similar skills and characteristics, did not address the question of whether there are some deaf drivers who are as safe or safer than some or all hearing drivers that UPS employs. Because the concept of risk is an individual, not aggregate one, the court held that UPS cannot “decrease its overall risk by excluding all deaf drivers because of the incremental aggregate additional risk they assertedly pose, without showing any individualized risk that is beyond the risk already accepted for some hearing drivers.”
The court also held that UPS could not establish that there are no practical criteria for determining which deaf drivers present a heightened risk and which do not. The court noted that UPS uses driving records to help predict whether individuals will be safe drivers and refuses to consider those who have more than a specified number of moving violations or accidents in a specific time frame. The court found that UPS presented no persuasive explanation as to why similar criteria could not be used to separate safe from unsafe deaf drivers. The court also noted that UPS gives drivers tests and extensive training, presumably because it helps the company determine which applicants will drive safely. “Yet, the record does not address the reasons similar tests and training could not determine which deaf drivers, if any, present no greater risk of accidents than the risk UPS accepts for other drivers.”
Employers’ Bottom Line:
The Ninth Circuit’s decision in this case demonstrates how important it is that employers who use selection criteria that screen out or tend to screen out disabled applicants ensure that these criteria accurately assess the applicant’s ability to perform an essential function of the job and that there is no other method of assessing this ability that does not screen out disabled applicants.
If you have questions regarding this case or the use of selection criteria under the ADA, please contact the Ford & Harrison attorney with whom you usually work.