UPS's Safety Standard Violates ADA

UPS operates nearly 6,000 vehicles with a gross vehicle weight of under 10,000 lbs. Those trucks are not subject to US Department of Transportation safety standards. Yet, UPS required drivers of those vehicles to pass the DOT's physical requirements. These include a hearing test. A class of hearing impaired applicants challenged these standards under the ADA.

The Ninth Circuit, in Bates v. UPS, held that UPS's job requirement violated the ADA. UPS' primary argument was that the employees were not "qualified" because they could not perform the essential functions of the job (including hearing at the level mandated by the DOT) "safely" with or without accommodation.

The court rejected the normal "McDonnell Douglas" burden-shifting analysis, saying that when an employer takes disability into account when making a decision, it is unnecessary to use that analysis. The court analyzed whether UPS engaged in "discrimination" under the ADA by using a qualification standard that screens out people with disabilities - here, the hearing impaired. The hearing test of course did screen out the hearing impaired. UPS argued that the plaintiffs could proceed only if the proved that the hearing test screened out applicants who could drive "safely," an essential job function. But the court said that the burden was on UPS to show the contrary.

That left UPS with the burden of proving "business necessity" and "job-relatedness" as an affirmative defense. On that point, the court decided UPS had to prove one of two things to uphold UPS's blanket exclusion: (1) "all" deaf drivers would drive substantially less safely than the "hearing" drivers or (2) it would be impossible to prove whether that was true. The court analyzed the extensive expert evidence submitted and agreed with the district court that the findings were inconclusive. Thus, UPS would have to exclude drivers on a case by case basis rather than categorically reject all drivers having a certain level of hearing impairment or greater.

This case will affect employers who use medical examinations to screen out groups of employees who do not meet the given criteria. The employer will be foreclosed from arguing the employee is not "qualified." Instead, the employer will have the burden of proving the exclusion was "job-related and based on business necessity," a high burden.