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In Truck Driver Case, Court Clarifies Burdens for Establishing Claims and Defenses Under ADA
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January 28, 2008
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ConstructionWebLinks.com
The U.S. Court of Appeals for the 9th Circuit, sitting en banc, has overruled in part its holding in Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir. 2001) regarding the showing an employer must make when asserting an affirmative defense to an American with Disability Act claim. In addition, the court clarified each party's respective burdens when an employer's policy is discriminatory on its face. Bates v. United Parcel Service, Inc., No. CV-99-02216-THE, 2007 WL 4554016.
Bates is a class action brought on behalf of hearing-impaired United Postal Services employees and applicants who were excluded from package truck driving positions because UPS required that all of its package truck drivers be certified by the Department of Transportation to drive vehicles weighing over 10,000 pounds, even if the vehicle they drove weighed less than 10,000 pounds. Certification required, among other things, that drivers pass a hearing test. The plaintiffs allege that class members meet all other criteria imposed by UPS, including completing an application, being at least 21 years old, having a valid driver's license and having a clean driving record. They alleged that UPS' blanket hearing standard discriminated against hearing-impaired persons who are protected by the ADA.
At trial, UPS moved for judgment on partial findings, arguing plaintiffs failed to show that any class member could pass the DOT hearing test with an accommodation and failed to show that UPS’ imposition of the DOT standard was unlawful because the standard was an essential job function.
Applying the pattern-or-practice burden-shifting scheme established in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), the District Court denied UPS' motion, holding that Bates had made a prima facie showing because he established that UPS' policy was discriminatory and that at least two members of the class were qualified for the position. The District Court further noted that Bates did not have to establish that any class member was qualified at that time.
UPS appealed the District Court's partial judgment. The 9th Circuit reversed, holding that the Teamsters burden-shifting protocol was inapplicable to the case and overruling Morton "to the extent that [Morton] imposes a [bona fide occupational qualification] standard under the ADA...."
The court explained that the framework established in Teamsters was inapplicable because UPS' policy discriminated against deaf persons on its face and is a per se violation of the ADA. When a policy violates the ADA on its face, the only question is whether the evidence set forth by the plaintiff supports a finding of liability. To establish liability under the ADA, a plaintiff must establish that he is a qualified individual. A "qualified individual" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."
The court held that once a plaintiff produces evidence to show that one or more class members are qualified to perform the job, the burden shifts to the employer either to refute that showing by demonstrating that the employee is incapable of performing an essential job function or to demonstrate that it is imposing a qualification that is both job-related and a business necessity.
The court held that Bates had not met his burden because he did not establish that any member of the class was qualified to drive a UPS truck safely, an essential job function.
The court then turned to UPS' affirmative defenses.
First, is DOT certification an "essential job function"? Essential job functions are "fundamental job duties of the employment position," not including marginal job functions. A number of criteria apply, including: "the employer's judgment as to what functions of the job are essential"; job descriptions prepared before advertising or interviewing applicants; "[t]he amount of time spent on the job performing the function"; "[t]he consequences of not requiring the [applicant or employee] to perform the function"; and the work experience of current and former employees. An additional consideration is whether the employer requires all employees to abide by the claimed essential function.
It is the employer's burden to put forth evidence to establish the essential functions of the job. The court concluded that UPS failed to establish that DOT certification was an essential job function because UPS did not apply the entire DOT test to all of its employees. Thus, the test was a qualification standard.
Second, if DOT certification is not an "essential job function," then is it a lawful "qualification standard"? Qualification standards, such as "employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities," are not lawful under the ADA "unless the standard, test or other selection criteria as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity."
To establish that the qualification standard is job-related, the employer must show that "the qualification standard fairly and accurately measures the individual's actual ability to perform the essential functions of the job." In order to demonstrate that the qualification standard is consistent with business necessity, the employer must show that it “substantially promote[s]” the business's needs.
With respect to a safety-based qualification standard, courts also should consider the “magnitude of the possible harm as well as the probability of occurrence.” Finally, the employer must show that "no reasonable accommodation currently available would cure the performance deficiency or that such reasonable accommodation poses an 'undue' hardship on the employer."
The court remanded this issue to the District Court for determination consistent with its opinion.
In evaluating whether UPS successfully established that its policy of imposing the DOT certification was a business necessity, the court held that the employer must satisfy the statutory components of the business necessity defense. In other words, the employer must show that the qualification standard is job-related, consistent with business necessity and performance cannot be accomplished by reasonable accommodation. The court remanded this issue to the District Court for further determination consistent with its holding.
The practical effect of the decision is that a safety standard imposed by an employer either must be an essential job function or be a business necessity. To qualify as an essential job function, the safety standard must:
|  | Be an essential job function in the employer's judgment.
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| | Be included in the employer's job descriptions prepared before advertising or interviewing applicants.
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| | Not be a marginal duty.
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| | Result in adverse consequences if the standard is not met.
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| | Be applied to all employees.
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If a safety standard is considered a business necessity, the employer must show that: The safety-based qualification standard:
| | Is job-related.
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| | Is consistent with business necessity.
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| | Performance cannot be accomplished by reasonable accommodation.
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