Following Panel Opinion Holding that District Court did not Clearly Err in Finding UPS Violated Federal Americans with Disabilities Act (ADA) by Refusing to Hire Deaf Drivers but that Defense was Correct that Class Action Judgment Based on Violation of California’s Unruh Act Must be Reversed, Ninth Circuit En Banc Overrules Prior Ninth Circuit Authority and Remands Class Action for Further Proceedings on ADA Claim
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. 2007) (Bates I). 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 originally 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. Defense attorneys sought and obtained rehearing en banc “to consider the contours of a claim that an employer’s safety qualification standard discriminates against otherwise ‘qualified’ persons with disabilities…, and the showing required of an employer to successfully assert the business necessity defense to use of such qualification under 42 U.S.C. § 12113(a),” Bates v. United Parcel Serv., Inc., ___ F.3d ___ (9th Cir. December 28, 2007) Bates II [Slip Opn., at 16891], and the Ninth Circuit reversed the Panel opinion.
The gravamen of the class action complaint was summarized in our article discussing the original Ninth Circuit opinion, which may be found here . In brief, 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 II, at 16892-93. 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 16893. 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. Bates I, at 1075. 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.
In Bates I, the Ninth Circuit panel held 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'” and “[t]he burden then shifts to the employer to establish the business necessity defense.” 465 F.3d at 1085 (footnote and citation omitted). The Panel further held that the district court’s finding that UPS had not met this burden was not “clearly erroneous,” id., at 1086.
On rehearing en banc, the Ninth Circuit reached a different conclusion. First, the Court noted that UPS introduced evidence that “for safety purposes, a certain level of hearing is necessary to drive non-DOT-regulated vehicles.Bates II, at 16919. This is because “package cars weighing almost five tons do not have operating characteristics similar to passenger cars and pose greater risks than do passenger cars.” Id. While the district court and the original panel decision found these arguments unpersuasive, the Circuit Court explained en banc at page 16919: “To be sure, DOT’s regulation does not apply to the category of vehicles at issue in this case. However, that circumstance does not mean that the standard has no relevance to the employer’s safety argument. 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 conclusion, however, is at odds with existing Ninth Circuit authority, so the Court overruled its prior opinion in Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir. 2001). Bates II, at 16919.
Based on its new analysis, the Ninth Circuit held that “while certainly not dispositive of UPS’s showing of job-relatedness, business necessity or the reasonableness of potential accommodations, UPS’s reliance on the government safety standard with respect to other vehicles in its fleet should be entitled to some consideration as a safety benchmark.” Bates II, at 16920. The Court remanded the class action for further consideration, however, because “Whether, as UPS puts it, ‘non-DOT package cars in the UPS fleet share significant risk characteristics with their slightly larger cousins’ is a factual question of the congruity between vehicles and drivers in UPS’s non-DOT fleet and those regulated by DOT.” Id.
NOTE: The original Ninth Court panel opinion reversed the judgment to the extent that it found UPS liable under the Unruh Act. Bates I, at 1093-94. And this holding was reaffirmed en banc. Bates II, at 16891, 16923.