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"Being Fairer to the Disabled"

Daily Journal
12/29/06

In a decision that could have far-reaching effects, the 9th U.S. Circuit Court of Appeals this fall held that United Parcel Service may not use standardized hearing tests to disqualify applicants for the job of package delivery truck driver. The court also held that a job applicant does not have the initial burden of demonstrating that he or she is qualified to perform the job in question, notwithstanding his or her inability to pass the disputed hearing test. Bates v. United Parcel Service Inc., 465 F.3d 1069 (9th Cir. Oct. 10, 2006).

Bates was a hard-of-hearing employee of UPS who applied for an open position as a package delivery truck driver. In order to be considered for the position, Bates was required to pass a hearing test administered by UPS. Bates was unable to do so and was denied the job. The hearing test, however, was mandated by the U.S. Department of Transportation for drivers of much larger vehicles, and passing the test was not a DOT requirement for drivers of lighter trucks like those used by UPS for package delivery. The 9th Circuit affirmed the decision of the district court that, in accordance with the Americans with Disabilities Act, UPS could not use the test as a sole basis to screen out applicants for package delivery truck drivers.

The first issue the 9th Circuit dealt with was the question of which party had the burden of proving that Bates was a "qualified person with a disability" as required by the Americans with Disabilities Act. There was no question that Bates was a person with a disability. The question was whether he was qualified to safely drive a package delivery truck, notwithstanding being unable to pass the DOT hearing test for larger trucks. UPS said Bates had the burden of proving that he was so qualified, but the 9th Circuit disagreed. Holding that such a burden was incompatible with the ADA, the 9th Circuit said that, as long as Bates met every other qualification standard, the burden should fall on UPS to demonstrate that all applicants who failed the DOT test were unqualified to safely drive package delivery trucks. The court held that an applicant can challenge a "categorical qualification standard" (here the DOT hearing test) by showing that the categorical standard tends to screen out individuals with disabilities and that the applicant meets all other qualification standards for the job in question. In other words, if the applicant would be qualified to be a delivery truck driver but for his or her hearing impairment and if the hearing test screens out such disabled applicants, the burden shifts to the employer to establish the business necessity of the challenged standard.

The court turned to the UPS affirmative defense that it could exclude applicants who failed the DOT hearing test under the business necessity test. The business necessity test arises from Section 12112(b)(6) of the ADA which provides as follows: "It may be a defense to a charge of discrimination ... that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out ... an individual with a disability has been shown to be job-related and consistent with business necessity."

The 9th Circuit said that UPS failed to show that the test was job-related and consistent with business necessity, as required by the ADA. In order to make such a showing, UPS would have to have proved that substantially all deaf drivers present a higher risk of accidents than non-deaf drivers and that there is no other practical way (other than the DOT test) to determine which applicants present a heightened safety risk and which do not. The Court of Appeals agreed with the trial court that UPS had failed to prove those elements, mainly because UPS failed to produce any evidence on those issues, and therefore failed to meet its burden of proof. Consequently, the court held that UPS would have to engage in an individualized process to determine which hard-of-hearing applicants posed too great a safety risk to be employed as delivery drivers. The court noted several criteria which UPS could have employed in such an individualized process, including 1) whether the applicant has had the benefit of specialized training, 2) whether the applicant has a sustained safe driving record, 3) whether the applicant has previously successfully driven commercial vehicles and 4) whether the applicant has passed a supplemental driving test specifically designed to simulate the scenarios of concern.

The court affirmed the district court's injunction, which prohibited UPS from using the DOT test to screen out applicants for package driver positions and which required that, for applicants who meet every other criteria for the job, UPS shall perform an individualized assessment of the ability of such applicants to obtain driving work in non-DOT-regulated vehicles, including engaging in an interactive process with the applicants.

This part of the decision built on an earlier 9th Circuit case that had addressed the same issue. Morton v. United Parcel Service Inc., 272 F.2d 1249 (9th Cir. 2001). In Morton, the issue was whether UPS had to attempt to reasonably accommodate a hard-of-hearing applicant for a package driver position by assuring that the applicant would drive only smaller trucks, notwithstanding a union seniority system that would have required some effort on the part of UPS to accommodate the applicant. The Morton case, although suggesting the outcome in Bates, did not reach all the issues decided in Bates, because the earlier case came up on an appeal from summary judgment in favor of UPS. The court in Morton reversed the summary judgment and remanded the case to the district court to resolve many of the issues eventually decided in Bates. The combination of the two cases, however, makes it quite clear that, in the 9th Circuit, employers who rely on standardized tests to screen applicants who may be unable to perform essential job functions because of disabilities must consider whether applicants who fail such tests could perform the jobs in question with reasonable accommodation.

The Bates case is important, because many categorical qualification standards are used to screen job applicants in areas such as hearing, vision, mobility and strength. Thus, employers who use such standards must be sure that the standards can meet the business necessity test. Furthermore, the burden of proving that the standard screens out only unqualified applicants is on the employer. Thus, employers must ask whether such standards really determine who would be unable to perform the job in question (or perform it safely) and whether there are no other, more individualized, ways of making that determination.

Some of the issues with which the 9th Circuit grappled in Bates may be clarified if Congress passes the Americans With Disabilities Restoration Act of 2006, which was introduced on Sept. 29 by Reps. James Sensenbrenner (outgoing chairman of the Judiciary Committee) and Steny Hoyer (incoming majority leader). Among other things, the proposed law will liberalize the definition of who is disabled and make it clear that any discrimination "on the basis of disability" is prohibited. The authors have stated that the courts have been interpreting the ADA too narrowly and not in accordance with the intent of Congress. This bill needs to be followed carefully by human resources professionals and employment lawyers. With the Democrats gaining control of Congress, passage of the bill seems likely. The real question is how President Bush will react to legislation enacted by Congress that may be opposed by business interests. Will he start wielding his veto pen with greater regularity, or will he do a Schwarzenegger and embrace bipartisanship?

John T. Hansen is a partner in the San Francisco office of Nossaman Guthner Knox & Elliott.

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