Monday, December 31, 2007

9th Circuit creates new affirmative defense under the ADA

Earlier this month I reported on the EEOC's Fact Sheet on Employment Tests and Selection Procedures. United Parcel Service provides an example of one such screening criteria, and gives some hope to employers who use medical or other criteria to screen out certain disabled employees.

UPS imposes a Department of Transportation hearing standard on all package-car drivers, even though the standard only applies to those who drive vehicles over 10,000 pounds. UPS disqualifies from employment any employee or applicant who cannot meet that standard, whether or not the vehicle that individual will operate is over or under the 10,000 pound threshold. Last week, the 9th Circuit, in Bates v. United Parcel Service, reversed a lower court, which had held that application of the standard to those who do not drive covered vehicles violated the ADA.

Section 12113(a) of the ADA makes it a defense to a disability discrimination claim "that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation." This defense breaks down into three elements: 1) job-relatedness; 2) consistent with business necessity; and 3) that job performance cannot be accomplished by reasonable accommodation.

As evidence of the lawfulness of its hearing qualification standard, UPS offered up the DOT standard to show that a certain level of hearing is necessary to safely drive even non-DOT-regulated vehicles. The 9th Circuit found the 10,000 pound threshold irrelevant to whether UPS could lawfully rely on the DOT safety standard as a qualification standard for all driver positions:

To be sure, DOT's regulation does not apply to the category of vehicles at issue in this case. However, that circumstance does not mean that the standard has no relevance to the employer's safety argument. UPS is entitled to use as some evidence of its business necessity defense the fact that it relied on a government safety standard, even where the standard is not applicable to the category of conduct at issue.... Thus, 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.

Thus, employers are entitled to rely on objective safety criteria (such as governmental regulations) as a qualification for a position, even if the at-issue regulations are not mandated for the specific position. Such reliance, however, is not dispositive as to the lawfulness of the qualification. Instead, one must examine the congruence between the safety standard and the position to which it is being applied. In other words, is there a bona fide, demonstrable correlation between the standard and performance of the essential functions of the position?

While this decision does not bind companies in Ohio, it should give employers everywhere some solace that objective screening criteria will not necessarily be found to be discriminatory, even if they effectively screen out from consideration for a position all disabled applicants and employees. It also lets employers know that they can employ reasonable selection criteria and safety standards without fear of necessarily being second-guessed by a court.

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