A recent ruling by the Ninth Circuit Court of Appeals (the Court) is likely to generate a flurry of class action claims arising under the Americans with Disabilities Act (ADA).
In Bates v. United Parcel Service Inc., No. 04-17295 (9th Cir., Oct. 10, 2006), the Ninth Circuit upheld a ruling by a district court that the United Parcel Service (UPS) violated the ADA when it adopted a job qualification that excluded deaf individuals from employment as “package-car drivers” within the company.
The Court’s ruling established a lighter burden of proof for plaintiffs seeking to challenge facially discriminatory qualification standards than those required in individual ADA discrimination cases.
The Court’s ruling also established, beyond a doubt, that employees may bring class action lawsuits under the ADA, challenging the application of uniform qualification standards. In light of this decision, employers will want to evaluate their physical qualification standards to determine if any of those policies are susceptible to challenge under the ADA.
Background
Bates involved a UPS qualification standard that required the company’s package-car drivers to pass a physical examination that the Department of Transportation (DOT) requires for all commercial drivers.
The physical examination at issue included a hearing test that screened out deaf individuals. Significantly, the DOT’s physical examination is only required for drivers who operate vehicles with a gross vehicle weight of at least 10,001 pounds.
Because several of UPS’s package delivery vehicles have a gross vehicle weight of less than 10,001 pounds, the DOT’s regulations did not require that the drivers of those vehicles meet the hearing requirement. Nevertheless, UPS required all of its package-car drivers to pass the test, regardless of the weight of their vehicles.
A class of UPS employees and applicants who were unable to meet the DOT hearing standard brought a lawsuit against UPS alleging that the company’s hearing requirement violated the ADA and California’s anti-discrimination statutes, the Fair Employment and Housing Act (FEHA) and the Unruh Act. After the district court granted the plaintiffs’ motion for class certification, the case proceeded to trial.
Following the first phase of a bifurcated trial, the district court enjoined UPS from utilizing the DOT hearing standard to screen applicants for package-car driving positions,1 concluding that the hearing standard was unlawfully discriminatory under the ADA, the FEHA, and the Unruh Act. On appeal to the Ninth Circuit, UPS argued (among other things) that plaintiffs did not establish that any class member was a “qualified individual with a disability;” that the qualification standard was justified under the business necessity defense; and that the class should have been decertified.
The first issue addressed by the Ninth Circuit was whether any of the named plaintiffs had legal “standing” to bring a class action lawsuit against UPS. The Ninth Circuit explained that in order to establish standing in an ADA class action suit, at least one of the named plaintiffs must show that he or she suffered a legal injury that was caused by the defendant and that could be redressed by the court.2
The Ninth Circuit explained that if one of the named plaintiffs met all of the basic job requirements for the package-car position other than the challenged hearing standard, the class would have standing to bring its lawsuit.
Applying this rule, the Ninth Circuit found that named plaintiff Babaranti Oloyede had, at one time, been qualified to bid on a package-car driver position (excluding the hearing standard). Although Oloyede subsequently transferred to a position within the company from which he could no longer apply for the package-car driver position, the Court nevertheless ruled that he was “injured.”
The Court explained that the UPS policy deterred him from remaining in a driver-eligible position; therefore, the fact that he was not presently eligible to apply was “of no moment.”
Finding that he had a “continuing interest” in the package-car driver position, the Court found that Oloyede was “injured” and that the class had standing.
Next, the Court addressed UPS’s argument that the plaintiffs had the burden of proving that at least one class member was a “qualified individual with a disability” as is required in individual ADA discrimination cases. Specifically, UPS contended that at least one class member needed to demonstrate an ability to drive “safely” to show that he or she was a “qualified individual with a disability.”
After a lengthy discussion of the statute, regulations, and legislative history to the ADA, the Court rejected UPS’s argument. The Court held that when a plaintiff challenges a categorical employment qualification standard, such as UPS’s hearing requirement, the plaintiff need not establish that the qualification standard excludes qualified individuals with disabilities.
Instead, a plaintiff need only show that: (1) he or she meets the other qualifications for the position besides the challenged standard; and (2) that the challenged standard screens out or tends to screen out an individual with a disability or class of individuals with disabilities.
The Ninth Circuit’s ruling makes it easier for plaintiffs to challenge facially discriminatory policies under the ADA.
The Court further held that if a plaintiff meets this minimal burden, the burden shifts to the employer to establish that its facially discriminatory qualification standard satisfies the “business necessity” defense. To meet this burden, the employer must show that: (1) substantially all persons with disabilities excluded by the standard present a higher risk than individuals not excluded; or (2) that there are no practical criteria for determining which excluded individuals with disabilities present a higher risk.
Thus, the employer’s burden in this kind of case is heavier than that which is normally required to establish the business necessity defense. Indeed, the Court observed that the evidence presented by UPS that a hearing driver is “generally” safer than a deaf driver with similar skills and characteristics was insufficient to meet its burden. Finding that UPS had not shown its hearing standard was justified as a “business necessity,” the Ninth Circuit upheld the trial court’s ruling that the standard violated the ADA.3
Recommendations for Employers
The Bates decision serves as a cautionary tale for employers who use physical qualification standards to screen out employees. The Ninth Circuit’s ruling has made it much easier for plaintiffs to challenge a discriminatory policy and much more difficult for employers to defend their use of such policies.
The decision also indicates that lawsuits brought under the ADA challenging the application of uniform qualification standards may properly be brought as class action lawsuits.
In light of Bates, employers should carefully review all physical qualification standards to ensure that they do not violate the ADA.
Importantly, however, Bates does not prohibit an employer from maintaining physical qualification standards that are otherwise mandated by law.
Indeed, the Ninth Circuit expressly stated that UPS could properly enforce the hearing standard for those drivers whose vehicles were subject to the DOT regulations (e.g., those with a gross weight of at least 10,001 pounds). However, given the unfavorable allocation of burdens set forth in Bates, employers should carefully scrutinize any physical requirement standards that are not actually required by law.
Furthermore, to reduce the risk of class action lawsuits, employers may wish to consider implementing, or amending, alternative dispute resolution policies that expressly require employees to bring disputes to arbitration only as individuals, and not as part of, or representing a class.
Employers with questions about existing physical qualification standards or ways to reduce exposure to class action lawsuits are encouraged to contact an experienced labor and employment attorney for assistance.
Footnotes
1 As a caveat, the district court observed that “nothing in this order requires UPS to allow applicants who cannot pass the DOT hearing standard to drive vehicles weighing more than
10,000 pounds.”
2 In this case, the Ninth Circuit addressed only the first element of the standing test (e.g., whether a named plaintiff suffered a legal injury), because the other two elements were not at issue.
3 The Ninth Circuit rejected UPS’s argument that the class should have been decertified. While the Court did not provide any meaningful analysis on the class certification issue, the Court’s decision suggests that a job qualification that is facially discriminatory and applied uniformly to all job applicants may be sufficient grounds for class certification.
Patrick H. Hicks is the Founding Shareholder of the Reno and Las Vegas Littler Mendelson offices. Hicks is Nevada’s most experienced employment law litigator and trial attorney, and he regularly appears in all state and federal courts in Nevada and elsewhere. He can be reached at phicks@littler.com.
Deborah L. Westbrook is an associate at Littler Mendelson in Las Vegas. She can be reached at dwestbrook@littler.com.
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