Is good hearing an essential job requirement for drivers of UPS trucks? UPS thinks it is. They categorically disqualified from driving any applicant with a severe hearing disability. They say it’s a safety issue. We read in the LA Times, in an article by Lisa Girion, that UPS failed to win the safety argument in court.
The San Francisco-based U.S. 9th Circuit Court of Appeals ruled Tuesday that UPS illegally discriminated against hundreds of deaf employees and applicants by barring them from driving delivery vans. As is so often the case, UPS ran into trouble by establishing an across-the-board exclusion of drivers with hearing problems. In the world of disability, you just cannot lump everyone together. You have to take it one disabled applicant at a time.
“If you want to use a physical criteria to exclude a whole class of people from a job, you need to be able to prove that substantially all the people with that criteria can’t do the job safely,” said Lawrence Gartner, a partner with Baker & Hostetler in Los Angeles who represents management in employment law cases. The ADA requires highly individualized findings. UPS dispensed with any individual analysis of a given deaf applicant’s qualifications for the job.
Employers need to review their hiring policies and job requirements to make sure none of them exclude broad groups of people without just cause. Companies that fail to take such steps could find themselves vulnerable to similar suits from disabled employees.
In its decision, the court upheld a 2004 lower-court ruling that the parcel delivery company’s policy of denying driving jobs to hearing-impaired employees violated the Americans with Disabilities Act. The fact that other delivery companies routinely use deaf drivers made the UPS categorical exclusion pretty difficult to justify.
What happens next? The ruling sends the class action case back to federal district court for a series of individual trials over compensation, which could include giving hearing-impaired employees priority for promotions into driving jobs, as well as lost wages and punitive damages
Now Hear This!
Joe Beachboard (who joins the ranks of my favorite names of attorneys practicing in California) says the ruling puts employers in a “damned if they do and damned if they don’t” situation.
If UPS doesn’t employ deaf workers as drivers, it can be sued under the disability act, he said. But if a deaf UPS driver has a serious accident, the company also could be sued.
Well, maybe. I think that UPS will be on solid ground when they put hearing impaired drivers in their trucks. With all the distractions surrounding those of us who can hear and drive at the same time (cell phones, books on tape, CDs, Ipods), one can hardly argue that we are really in tune to the chaos that surrounds us on the roads of America. I imagine that for the most part, UPS’s hearing impaired employees will do a better job of focusing on their driving than the rest of us.
