With 91,700 delivery vehicles on the road every day, one of the top concerns for Atlanta-based UPS Inc. is driver safety. So managers thought they were doing the right thing when they barred deaf and hearing-impaired people from driving the company’s largest delivery vans. They based their decision on studies that showed deaf drivers are more likely to get into car accidents.

However, some hearing-impaired employees didn’t see it as a safety policy. Rather they saw it as an arbitrary bar to their career advancement based on the stereotype that deaf people cannot drive safely. To remedy that, more than 1,000 current and former UPS employees and applicants sued the company in a California district court in 1999, alleging the company’s policy violated the ADA and California laws.

Seven years later, their case made its way to the 9th Circuit, which upheld a 2003 district court decision that UPS violated the ADA and enjoined the company from enforcing its policy.

Many experts believe Bates v. UPS puts employers up against a wall–forcing them to choose between what they see as legitimate safety concerns and potential ADA claims.

“Companies want to comply with the ADA, but they don’t want to endanger the public,” says Richard R. Meneghello, employment law partner at Fisher & Phillips. “Can you imagine the horrible press and liability a company would face if it put a hearing-impaired person on the road who then caused an accident?”

Safety First

UPS argued almost exactly that in its defense of its policy. Specifically, it said that under the “business necessity” rule, employers should be allowed to exclude people with disabilities from certain jobs for safety reasons.

At trial, UPS presented three studies it said led company officials to conclude that almost all deaf drivers had a higher risk of car accidents than hearing drivers. UPS also submitted expert testimony that accommodations such as extra visual cues would not adequately compensate for a driver’s inability to hear. In addition, UPS argued its hearing test was justified because it mirrored Department of Transportation (DOT) standards (although the standards UPS used were for trucks larger than those in its fleet).

Still, the 9th Circuit found the company hadn’t shown it had compelling safety reasons for its policy. Where UPS’s policy went wrong, the court held, was that it automatically excluded people who could not pass the DOT hearing test without individually assessing them.

“The ruling is clear that UPS does not have to do anything that would compromise safety,” says Kevin Knestrick, staff attorney at Disability Rights Advocates, the Berkley, Calif.-based non-profit that represented the plaintiffs. “And it does not say that people who cannot pass the DOT hearing standard automatically get to drive UPS delivery trucks. It simply says UPS has to have policies in place to evaluate individual candidates’ ability to drive the vehicles safely rather than categorically excluding all deaf people.”

Many experts argue that testing all applicants individually is both expensive and difficult to do in a uniform manner. But that is exactly what the 9th Circuit decision requires.

“Unless an employer can demonstrate that a certain class of individuals would be per se unable to perform a job safely, or that there is no meaningful way to test applicants’ ability to safely perform a job, it is going to have to evaluate applicants individually,” says Suzanne Thomas, partner at Preston Gates and Ellis. “Under the standard the 9th Circuit applies, it is difficult to think of a blanket exclusion that would be OK.”

National Outlook

Needless to say, that makes life difficult for employers that will now have to implement procedures to individually test job applicants wherever it is arguably possible to do so. But there are a few points of hope in the debate over how employers should balance the ADA with safety concerns.

It is significant to note the 9th Circuit is employee-friendly, and other courts, such as the 2nd and 5th Circuits, have decided in employers’ favor in similar cases.

“This case easily could have gone differently had it been tried elsewhere,” Meneghello says. “The 9th is not in line with other Circuits’ interpretations of the ADA.”

The disparity between Bates and the case law from the rest of the nation indicates the 9th Circuit may grant UPS’s request for an en banc rehearing, which was pending at press time. In addition, experts predict the U.S. Supreme Court may take up the issue as well, if not in this specific case, sometime in the near future.

Until that happens, employers have to be aware that if they are called into court in the 9th Circuit, they will face an uphill battle. And given the plaintiffs’ success in Bates, ADA plaintiffs will no doubt find ways to file there.

“There are organized advocacy groups that are trying to broaden the ADA, and you will see activist litigation,” Thomas says. “Any national employer could be subject to jurisdiction in the 9th Circuit.”