Wednesday, October 11, 2006

9th Circuit rules against UPS

Yesterday the Ninth Circuit Court of Appeals (covering the states of Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon, and Washington) ruled in favor of a class of workers applying for "package-car" drivers with United Parcel Service (UPS).

Essentially, the court ruled that UPS failed to show that a "qualification standard" used by UPS in its screening process--requiring applicants to meet DOT hearing standards mandated only for drivers of vehicles with a gross vehicle weight of 10,0001 pounds or greater--was job related and consistent with business necessity as required by the Americans with Disabilities Act (ADA).

This is consistent with other rulings in the realm of safety (e.g.,
Chevron v. Echazabal ) that select-out decisions must be based on an individual assessment of an individual--it's not enough to make general claims about people with disabilities not being able to be as safe as those without disabilities. Of course it didn't help that UPS was unable to find a study acceptable to the court that provided statistical evidence that deaf or hard of hearing individuals drove significantly worse than hearing individuals.

There's a lot in this case and it's worth a read. I'm looking forward to reading other people's (read: lawyers) interpretations, but here's some goodies I pulled out:

- Unlike individual or pattern-and-practice discrimination suits, this case involved a facially discriminatory policy. As a result, burden-shifting protocol was not necessary and the only question is whether the employer discriminated based on presence of the disability (which they admitted to doing).

- Although the ADA prohibits discriminating against "qualified" individuals, the parts that speak to employer defense make no mention of "qualified." In the context of this case, the result was:

"...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." S 121129(b)(6). The burden then shifts to the employer to establish the business necessity defense."

- Employers attempting to defend such a safety standard must show, per the
Morton v. UPS decision that "substantially all [individuals with the disability] present a higher risk of accidents than [non-disabled applicants]."

- Content-validity evidence (e.g., SME judgments of KSA importance) are insufficient in this type of case. The court said:

"Neither the subjective bleiefs of deaf drivers nor the ways in which deaf drivers compensate for their hearing loss was considered. In addition, [this study is] not relevant to the question at hand, as it merely demonstrated the existence of "hearing critical" tasks but did not establish a link between those tasks and safety."

UPS was using a standard that was never intended to be applied to its package delivery trucks. They were called on it and were unable to come up with evidence to support it. So now they have an injunction (supported by the 9th circuit) that requires them to come up with "some form of individualized assessment" to make more refined decisions. Stay tuned true believers, the story may not be over, as it could be appealed to the Supreme Court.

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