Ninth Circuit Rules That Application Of DOT Standard To UPS Drivers Violates ADA

Volume 5, Issue 14
November 3, 2006

The Americans with Disabilities Act ("ADA") prohibits the use of qualification standards in hiring which screen out a class of individuals with disabilities, unless that standard is shown to be job-related for the position and consistent with business necessity. In Bates v. United Parcel Service, Inc., (9th Cir. October 10, 2006), the Ninth Circuit Court of Appeals determined that UPS violated the ADA by excluding individuals from employment positions as drivers because they could not pass a Department of Transportation ("DOT") hearing standard that does not apply to UPS's trucks.

The DOT requires the hearing standard only for those driving vehicles with a "gross vehicle weight" of at least 10,001 pounds. UPS's fleet contained vehicles ranging from 7160 pounds to 9318 pounds, and it required all applicants for driver positions to meet the DOT hearing qualification. The Ninth Circuit Court found that on its face this blanket requirement was a discriminatory qualification standard under the ADA unless it was shown to be job-related for the position in question and consistent with business necessity. The Court explained that in order to prove the business necessity defense, UPS needed to prove either: (1) that substantially all deaf drivers presented a higher risk of accidents than did drivers who were not deaf; or (2) that there were no practical criteria for determining which deaf drivers presented a heightened risk of danger and which did not.

The Ninth Circuit Court determined that UPS failed to meets its burden. UPS offered crash risk studies, human factor studies and expert testimony to support its position that deaf drivers presented a higher risk of accidents. The trial court rejected each type of evidence as insufficient, flawed, and/or unhelpful or unpersuasive, findings the Ninth Circuit Court upheld. Moreover, the Court explained that UPS's evidence showing that drivers who can hear are safer than deaf drivers with similar skills and characteristics was insufficient because it did not address whether there weresome deaf drivers who were as safe or safer than some or all of the drivers employed by UPS who could hear. The Court also agreed that UPS failed to prove the second prong of the business necessity defense, pointing out that while deaf drivers are licensed to drive, UPS had not attempted to train or test any individual deaf drivers to determine their actual risk.

This case is instructive on the uphill battle an employer faces in establishing and defending a hiring standard which excludes a class of individuals with disabilities. The Court was clearly troubled by the blanket exclusion of all deaf drivers and demonstrated that such exclusions will be strictly scrutinized. The Court seemed to believe that employers should analyze safety and other related hiring concerns on a case-by-case basis, making an individualized determination to every extent possible.

This case can be accessed from the following link:

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