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A 9th U.S. Circuit Court of Appeals panel has ruled that United Parcel Service Inc. violated the Americans With Disabilities Act (ADA) by refusing to consider hearing-impaired workers for driving positions. Bates v. UPS, No. 06 C.D.O.S. 9546. At issue was United Parcel Service’s policy mandating that its drivers pass a government hearing test, even though the test isn’t required to operate many of the company’s vehicles. UPS argued that its exclusion policies were designed with safety in mind. But the court said that a blanket determination of safety can’t be made on the basis of disability. “The concept of risk, in other words, is an individual, not an aggregate, one,” Judge Marsha Berzon wrote on behalf of the unanimous panel, “albeit one calculated by averaging out overall risk: how likely is it that the individual driver will get into an accident?” Judges Betty Fletcher and John Gibson (an 8th Circuit judge sitting by designation) concurred. Laurence Paradis and Caroline Jacobs of the Oakland, Calif.-based nonprofit firm Disability Rights Advocates represented the plaintiff class. “There are a whole host of factors that go into every job description, and it’s very rare that employees can challenge arbitrary job standards that close the door to people with disabilities,” Paradis said. “The ruling was a tremendous victory for people with all kinds of disabilities.” UPS’ defense was handled by Los Angeles-based Gibson, Dunn & Crutcher. Its attorneys could not be reached for comment. But company spokeswoman Heather Robinson said UPS “strongly disagrees with the court’s ruling, and we are evaluating our options, including an appeal. We believe this case is about safety. It has nothing to do with disability or discrimination.” In upholding an injunction granted by U.S. District Judge Thelton Henderson in 2004, the 9th Circuit ruled that the plaintiffs did not have to prove that they could drive “safely” in order to have standing. Instead, they merely had to meet the other job qualifications UPS listed for the position, which they did. That reasoning shifted the burden of proof to UPS, which had to prove that the driving job mandated the strict government hearing test required by the company. “UPS didn’t show persuasively that hearing-impaired people were more likely to have accidents,” said Heller Ehrman partner Andrew Livingston. “And the flip side, it didn’t show that there was no way to determine whether or not hearing-impaired drivers present a heightened risk.” Livingston added: “The opinion certainly changes the way people litigate these types of lawsuits, both at the summary judgment stage and the trial stage. It shifts the burden under the ADA to the defense to prove that the employee or class of employees are not qualified because of the specific qualifications standard at issue.” UPS maintains it does not discriminate on the basis of disability. “UPS has employees with disabilities-including hearing impairments-in a wide range of positions throughout the company’s nationwide work force,” spokeswoman Robinson said.

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