Hearing-Impaired Employment and the ADA

By James Hatch

Mar. 14, 2008

United Parcel Service employees could bid for package-car driver jobs, which included a hearing test mandated by the U.S. Department of Transportation for drivers operating vehicles that weighed 10,000 pounds or more. The DOT’s regulations did not apply to UPS’ package vehicles since their weight was less than 10,000 pounds.

In May 1999, five UPS employees filed a lawsuit alleging violations of the Americans With Disabilities Act and related California law, saying UPS discriminated against them when it denied promotional opportunities to the package-car driver positions.

A $9.9 million partial settlement resolved certain of the claims, except those involving the denial of driving jobs to deaf workers. The U.S. District Court for Northern California conducted a trial on those remaining issues, held that UPS violated the ADA and state law, and issued an injunction requiring UPS to assess each hearing-impaired applicant individually for the position of driving vehicles.

On appeal, the U.S. Court of Appeals for the 9th Circuit in San Francisco agreed that UPS violated the ADA by not allowing deaf employees to be considered for jobs in its smaller package vehicles not covered by DOT regulations.

The 9th Circuit granted rehearing of the case, and reversed the trial court’s grant of an injunction. It held that the district court misapplied the ADA in deciding that UPS could not satisfy a business-necessity defense for its driver hearing standards and in deciding that hearing-impaired drivers were qualified individuals with disabilities under the ADA. Bates v. United Parcel Service, Inc., 9th Cir. (en banc), No. 04-17295 (12/28/07).

Impact:The employee alleging that hiring requirements violate the ADA must show that he or she is qualified to perform the essential functions of the job at issue. The bona fide occupational qualification defense does not apply to ADA claims.

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