We originally posted about the Ninth Circuit's panel decision in Bates v. UPS here. It's back. The court decided to reconsider the case with a 15 judge "en banc" panel. The court overhauled the panel's opinion and overruled some prior precedent as well.
At issue was a hearing test UPS required for drivers of certain trucks. The trucks were below the weight that would have required federal DOT hearing tests. UPS decided to use the federal testing standards for the lower weight trucks. The hearing tests of course screened out those with hearing impairments. A class action of hearing impaired applicants sued under the ADA.
Sitting en banc, the court decided the following:
- When an employer expressly takes a "disability" into account in making an employment decision (here, disqualifying the hearing impaired who failed the test), then no "burden shifting" case analysis is necessary.
- Even in such a case, the plaintiff must establish a prima facie case (that s/he has a disability, an adverse action, and causation), and that s/he is a "qualified" individual.
- To show "qualified," the plaintiff must establish (1) s/he satisfies the minimal prerequisites for the job and (2) that s/he can perform the essential job functions with or without reasonable accommodation.
- Essential job functions are duties. The employer has the burden of production to establish the essential job functions.
- There is a difference between duties and qualification standards, which include physical and mental requirements. The parties agreed that the ability to communicate effectively and drive safely were essential job functions. Hearing, on the other hand, is a qualification standard. It may be useful or necessary to perform the essential functions, but hearing in and of itself is not an essential duty.
- The employees must meet the burden of establishing "safe driving" as an essential job function before the employer is required to show that its qualification standard - satisfactory hearing - is job-related and consistent with business necessity.
- "To successfully assert the business necessity defense to an allegedly discriminatory
application of a qualification standard, test or selection criteria, an employer bears the burden of showing that the qualification standard is (1) 'job-related,' (2) 'consistent with business necessity,' and (3) that 'performance cannot be accomplished by reasonable accommodation.' The court overruled prior case authority suggesting the employer had to establish undue hardship or a "BFOQ" as part of the business necessity defense."
- "To show 'job-relatedness,' an employer must demonstrate that the qualification standard fairly and accurately measures the individual’s actual ability to perform the essential functions
of the job."
-"To show that the disputed qualification standard is 'consistent with business necessity,' the employer must show that it 'substantially promote[s]' the business’s needs. This is a high burden, the court noted.
- "Finally, to show that 'performance cannot be accomplished by reasonable accommodation,' the employer must demonstrate either that no reasonable accommodation currently
available would cure the performance deficiency or that such reasonable accommodation poses an 'undue hardship' on the employer."
- "[T]he employer is entitled to use a method of selecting drivers that will retain the overall safety record of its driver pool. Any suggestion in the district court’s opinion that hearing-impaired drivers may be held to a lower safety standard than hearing drivers is disapproved."
- "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."
This obviously is a significant ruling for employers to consider when setting job qualification standards that focus on physical or mental abilities. We will write a more detailed article in the weeks to come.
DGV