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In an en banc ruling, the 9th U.S. Circuit Court of Appeals has reversed an earlier panel and vacated class certification to hearing-impaired drivers and an injunction against United Parcel Service Inc. Bates v. UPS, No. 04-17295. The opinion lays out a new affirmative defense standard for employers hit with Americans With Disabilities Act claims. Judge Marsha Berzon enunciated the previous standard in a ruling she wrote in Morton v. United Parcel Service Inc., 272 F.3d 1249 (9th Cir. 2001). Berzon also wrote the three-judge panel decision in Bates in October 2006, and dutifully followed the precedent she had set up five years earlier. However, Berzon then sided with the en banc court, which cast aside her previous logic in favor of the new standard. The judge did issue a partial dissent, but that focused on another part of the ruling. Berzon did not dispute the ultimate judgment remanding the case to U.S. District Judge Thelton Henderson of San Francisco for more fact-finding. Employers including the U.S. Chamber of Commerce had argued in amici briefs for the new “business necessity” standard that the court adopted. The federal government requires drivers of large trucks to pass a hearing test. UPS had used the same federal standard in screening drivers for smaller trucks, which the plaintiffs say is discriminatory. “UPS is entitled to use as some evidence of its business necessity defense the fact that it relied on a government safety standard,” Judge M. Margaret McKeown wrote for the court, “even where the standard is not applicable to the category of conduct at issue.” She added, however, “The parallel consideration applies to an employee; that is, an employee may offer as evidence challenging the validity or applicability of a safety standard the government’s refusal to adopt such standard to govern the conduct at issue.” McKeown went on, “while certainly not dispositive of UPS’s showing of job-relatedness, business necessity or the reasonableness of potential accommodations, UPS’s reliance on the government safety standard with respect to other vehicles in its fleet should be entitled to some consideration as a safety benchmark.” “The 9th Circuit’s decision recognizes the importance of safe driving, and recognizes that employers like UPS may employ reasonable safety standards,” UPS said in a statement. The new standard will still require UPS to show that an across-the-board policy against hearing-impaired drivers is necessary, said Larry Paradis, co-director of litigation for Disabilities Rights Advocates. “We doubt the outcome will be any different,” Paradis said. “It’s a slightly different hurdle.” The 9th Circuit also told Henderson he would have to determine whether two of the plaintiffs can actually operate the smaller vehicles safely. Berzon’s dissent said the majority failed to clearly enunciate just what it meant. “Asking [the plaintiffs] to prove that they are ‘safe’ without providing guidance as to how they are to do so, or as to how ‘safe’ is ‘safe’ in this context, presents the litigants and the district court with an ill-defined and complicated puzzle,” wrote Berzon, who was joined by Judge Stephen Reinhardt. Though the trip back to Henderson’s courtroom may delay the plaintiffs, Paradis said, UPS surely would have appealed to the U.S. Supreme Court had the case gone the other way, causing its own delay. Given the relative consensus of the 9th Circuit � plus the absence of dissenters taking up UPS’ cry for a straight judgment � another ruling in the plaintiffs’ favor should be less tempting for Supreme Court review, Paradis said. “When it comes back, I think it will be much more bulletproof,” he said.

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