District Court did not Clearly Err in Finding UPS Violated Federal Americans with Disabilities Act (ADA) by Refusing to Hire Deaf Drivers, But Defense was Correct that Class Action Judgment Based on Violation of California’s Unruh Act Must be Reversed Ninth Circuit Holds
Plaintiff filed a putative class action in California federal court against United Parcel Service alleging violations of the federal Americans with Disabilities Act (ADA), and California’s Fair Employment and Housing Act (FEHA) and Unruh Civil Rights Act (Unruh Act) because it “categorically exclude[s] individuals from employment positions as ‘package-car drivers’ because they cannot pass a United States Department of Transportation (DOT) hearing standard that does not apply to the vehicles in question.” Bates v. United Parcel Serv., Inc., 465 F.3d 1069, 1073 (9th Cir. 2006). The district court certified the lawsuit as a class action. After a bifurcated trial, the district court ruled against the defense and found that UPS violated the ADA, the FEHA and the Unruh Act. On appeal, defense attorneys argued that “(1) Bates did not establish that any class members are ‘qualified’; (2) UPS satisfied its burden under the business necessity defense of the ADA; (3) the plaintiff class should be decertified; (4) the court’s injunction was an abuse of discretion; and (5) UPS did not violate the FEHA or the Unruh Act.” Id. The Ninth Circuit affirmed the judgment as to the ADA claim, reversed the judgment as to the Unruh Act, and refused to reach the FEHA claim finding it unnecessary in light of the fact that affirmance of the ADA claim “is sufficient grounds for affirming the injunction.” Id., at 1093 n.25.
Applicants for positions as UPS package drivers must, inter alia, pass the same physical exam that the United States Department of Transportation requires of prospective drivers of commercial vehicles, which includes a “forced whisper” test of the applicants’ hearing. Bates, at 1074. However, the DOT only requires a physical exam of those who will be driving vehicles with a gross weight in excess of 10,000 pounds. UPS, on the other hand, required the exam of all applicants, including the thousands of drivers operating vehicles weighing from 7100 to 9300 pounds. Id., at 1075. The class conceded that UPS may require the physical exam of who drive DOT-regulated vehicles, but argued that its blanket exclusion of deaf applicants violated state and federal laws. Id. The district court ruled in favor of the class, holding in part that UPS had failed to establish a business necessity defense to its actions. Id.
The Ninth Circuit first addressed UPS’s argument that the class should have been decertified because plaintiffs’ failure to establish that any of the class representatives were “‘qualified’ in the sense that they are capable of driving safely” meant that “the class lacked a representative qualified for the driving positions in question.” Bates, at 1075. The Circuit Court agreed with defense attorneys that, in order to have standing to prosecute the action under the ADA, at least one of the class representatives must be “‘qualified’ in the sense that the named plaintiff satisfied all prerequisites other than those connected to the DOT standard.” Id., at 1077. The Court disagreed, however, that this meant a class member must prove that he or she “can drive ‘safely,'” as such a requirement would be “structurally incompatible with the statute’s affirmative business necessity defense,” id. Utilizing this test, and clarifying tests enunciated in prior ADA opinions, the Ninth Circuit conducted a detailed analysis of the ADA claims (too extensive to summarize here, see id., at 1077-86), and held at page 1085:
We therefore hold that when a plaintiff challenges a categorical “qualification standard,” the plaintiff does not have the burden of establishing that that qualification standard excludes “qualified individuals with disabilities.” Rather, to establish statutory standing, the plaintiff has the burden of establishing that she meets other qualifications, unrelated to the challenged standard. In addition, the plaintiff has the burden to prove that the challenged qualification standard “screen[s] out or tend[s] to screen out an individual with a disability or a class of individuals with disabilities.” . . . The burden then shifts to the employer to establish the business necessity defense. (Footnote and citation omitted.)
In light of the potential inconsistency between Bates and prior Ninth Circuit authority concerning “qualified” individuals with standing to assert ADA claims, the Court explained at page 1086:
Two observations about this holding are in order. First, by holding that plaintiffs challenging a qualification standard do not have the burden of establishing that the standard excludes “qualified individuals with disabilities,” we are in no way suggesting that the ADA requires employers to hire unqualified individuals with disabilities. To the contrary, the business necessity defense ensures that employers will not be required to hire unqualified individuals, but channels the qualification inquiry in part into an affirmative defense.
Second, the burden-shifting framework we apply today pertains to cases testing whether an employer may use a particular qualification standard, not to cases testing whether an employer must hire a particular individual. If a court finds against an employer under the framework outlined in this opinion, it follows only that the employer may not use the qualification standard, not that a person challenging the standard must be hired. The usual statutory standards apply when an employer does not apply a categorical exclusion that precludes disabled persons from ever obtaining an individualized determination but instead makes an individualized determination.
The Circuit Court then turned to the business necessity defense, and concluded that the district court finding that UPS had not met its burden to establish that defense was not “clearly erroneous.” Bates, at 1086. “[The] two-pronged test for determining whether a defendant satisfies its burden on the business necessity defense when a disability-focused safety criterion is at issue, a defendant carries its burden if it establishes 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.'” Id. (citation omitted). The problem with the evidence introduced by the defense was one of proof – ” evidence that a hearing driver is generally safer than a deaf driver with similar skills and characteristics-i.e., evidence of the sort that UPS presented to the district court-still does not address the question of whether there are some deaf drivers who are as safe or safer than some or all of the hearing drivers that UPS employs.” Id. Thus, it was not clear error for the district court to find that the evidence was inconclusive as to whether deaf drivers were a higher risk. The Circuit Court also held that UPS failed to produce evidence that other tests or tools were unavailable to effectively screen unsafe deaf drivers, so the district court’s finding on this prong of the two-part business necessity test was not clearly erroneous. Id., at 1090-92. The Ninth Circuit also upheld the injunction issued by the district court, concluding that it was the least intrusive means of insuring compliance with the ADA. Id., at 1092-93.
The Circuit Court agreed with defense attorneys, however, that the judgment must be reversed to the extent that it found UPS liable under the Unruh Act. The district court believed that the finding of an ADA violation automatically equated to a violation of the Unruh Act, but recent Ninth Circuit authority holds otherwise. Id., at 1093-94 (citing Bass v. County of Butte, 458 F.3d 978 (9th Cir.2006)).
Finally, with respect to the FEHA claim, UPS argued that the “safety of others” defense compelled reversal. Bates, at 1093 n.25. Again, the district court believed that the ADA violation mandated a finding that UPS violated FEHA. The Ninth Circuit suggested that the district court may have erred on this issue, noting that “FEHA’s ‘safety-of-others defense has no direct analogue in the ADA’ and is broader than the ADA’s direct threat defense,” id. (quoting EEOC v. United Parcel Service, Inc., 424 F.3d 1060, 1074 n.12. (9th Cir.2005)), but the Court concluded that it need not decide that issue because the injunction against UPS nonetheless would be affirmed under the ADA claim. Id.
NOTE: We note that the Ninth Circuit preliminarily held that it had jurisdiction to hear all aspects of the appeal – that discussion may be found at pages 1075 and 1076.
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