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Court puts brakes on UPS ban

Court puts brakes on UPS ban

SAN FRANCISCO—Employers will face a tougher time justifying safety standards that exclude disabled workers from performing certain jobs following a federal appeals court ruling last week involving deaf employees at United Parcel Service Inc.

The 9th U.S. Circuit Court of Appeals' decision in Eric Bates vs. United Parcel Service Inc. stems from a class action lawsuit brought by UPS workers alleging that the Atlanta-based shipping company's safety-based hearing standard barred them from jobs driving UPS' familiar brown vans.

The San Francisco-based appeals court affirmed a lower court's finding that UPS violated the American's with Disabilities Act. The appeals court also upheld the trial court's injunction against the program and denied UPS motion to decertify the class that sued.

Defense and plaintiffs' attorneys point out that last week's decision will have wide implications for employers and is not limited to those with deaf employees that seek jobs operating company vehicles.

In particular, the decision bars employer safety programs that exclude entire groups of people with disabilities without establishing a business necessity, attorneys say. And employers now carry the burden of showing that an individual employee's disability precludes them from safely performing a specific job, as the court found that employees that challenge an employer's safety-based qualification standard do not need to establish that they generally can perform the essential functions of the job safely.

Instead, employees only have to show that they are qualified and can satisfy safety prerequisites that are unrelated to the challenged qualification standard. Once they do that, and show that the qualification standard at issue screens out individuals or groups with disabilities, then the burden shifts to the employer to establish that the challenged qualification is job related and consistent with a business necessity, court records show.

"UPS contends that in the face of uncertainty regarding whether deaf drivers are more dangerous than hearing drivers, it must be given the benefit of the doubt," the decision read. "The second prong of the business necessity defense...does give employers the benefit of the doubt in cases of uncertainty, but only when the employers introduce persuasive evidence supporting the conclusion that the answers to the questions at hand truly are uncertain. Here, UPS made no such showing."

The decision applies to employees or potential employees with a broad range of physical and mental impairments, not just those that are deaf, said Larry Paradis, executive director for Disability Rights Advocates, a Berkeley, Calif.-based organization that brought the lawsuit.

The ruling will burden any safety program where employers attempt to use a broad brush in imposing limits on accessing jobs, said Andrew Livingston, a partner and employment and labor specialist in the San Francisco office of Heller Ehrman L.L.P.

The ruling represents a significant legal shift because it now places the burden on employers to demonstrate that a disabled individual does not meet a qualification, in cases where there is a safety qualification standard, Mr. Livingston said.

In the past, employers could win a summary judgment by arguing that an employee belonged to an entire group of people that did not qualify for a job.

Federal appeals courts across the country have split on whether the burden rests on an individual disabled employee or the employer to prove whether a worker can perform a job safely, Mr. Paradis said.

But the 9th Circuit's decision is different, because it stems from a class action case and is based on the employer's guidelines that applied to an entire group rather than an individual.

At the state court level, California's Supreme Court is weighing the case of Green vs. State of California, in which a state appeals court found that a disabled employee does not have to prove his or her capacity to perform the essential duties of a job. Instead, the burden is on the employer to prove that the employee can't perform the job even with reasonable accommodations.

In the UPS case, the company said it is evaluating a potential appeal and that its safety policy is aimed at protecting the public and its employees. It declined further comment.

Court records show that UPS requires drivers to pass a physical that includes a hearing standard established by the U.S. Department of Transportation for drivers of trucks with a gross vehicle weight rating of more than 10,000 pounds, a larger truck than UPS' brown vans. But UPS went beyond the DOT requirement and applied the standard to drivers of its vans.

The decision shows that the court won't allow employers to use safety standards out of context, said Clay Creps, a partner and employment specialist in the Portland, Ore. office of Bullivant Houser Bailey P.C.

"They won't let you take a safety regulation that is very specific about what it applies to and use it for something where it doesn't apply," Mr. Creps said. The court said UPS needs to show that the standard is consistent with a business necessity, which is a recognized defense in ADA cases, Mr. Creps said.

The appeals court noted that deaf drivers are licensed to drive in every state. It also found that the trial court "was not clearly erroneous" in concluding that evidence was inconclusive in determining whether deaf drivers present a higher risk of accidents than nondeaf drivers.

But hearing is extremely important for safe driving, as is maintaining a standard for minimum hearing, said Carmen Daecher, president of Daecher Consulting, a Camp Hill, Penn.-based company providing loss prevention services for companies with vehicle fleets.

Employers must apply such a standard consistently for all employees, said Mr. Daecher who is chairman of an American Society of Safety Engineers safe motor vehicle operation committee.

But employers also must now ensure that each individual employee they exclude from driving does not meet the standard, rather than merely excluding an entire group because they might not meet the standard, he added.

Bates et al. vs. United Parcel Service Inc., Docket No. 04-17295, 9th U.S. Circuit Court of Appeals, Oct. 10.