In Bates v. United Parcel Service, Inc. ("Bates") Case No. CV-99-02216-TEH, filed on December 28, 2007, the Ninth Circuit, sitting en banc, overruled in part its previous holding in Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir. 2001) ("Morton"), with respect to the showing an employer must make when asserting an affirmative defense to an American with Disability Act ("ADA") claim. In addition, the Circuit clarified each party's respective burdens when an employer's policy is discriminatory on its face.
Bates is a class action brought on behalf of hearing-impaired United Postal Services ("UPS") employees and applicants who were excluded from package truck driving positions because UPS required that all of its package truck drivers be certified by the U.S. Department of Transportation ("DOT") to drive vehicles weighing over 10,000 pounds, regardless of whether the particular vehicle they drove weighed less than 10,000 pounds. Certification required, among other things, that drivers pass a hearing test. Bates, Slip. Opn. at 16892-93. Bates and four other class representatives, who allege that they (and other class members) meet all of the other criteria imposed by UPS, including completing an application, being at least twenty-one years old, having a valid driver's license and having a "clean" driving record, sued UPS on behalf of themselves and those similarly situated. Id. at 16893-94. Bates alleged further that UPS's blanket hearing standard discriminated against hearing-impaired individuals protected by the ADA. Id. at 16893.
At trial UPS moved for judgment on partial findings, arguing, amongst other things, that its imposition of the DOT standard on all package car drivers was lawful because Bates failed to show that any member of the class met the DOT standard, an essential job function, or that with or without accommodation that any class member could pass the DOT hearing test. Id. at 16894. Applying the pattern-or-practice burden shifting scheme established in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) ("Teamsters"), the district court denied UPS's motion, holding that Bates had met his prima facie showing because he established that UPS's policy was discriminatory and that at least two members of the class were qualified for the position. Id. at 16894. The district court further noted that Bates did not have to establish that any class member was qualified at that time. Id. at 16894. UPS appealed the district court's partial judgment. Id. at 16895. On interlocutory appeal, the Ninth Circuit reversed and remanded the district court's decision, holding that the Teamsters burden shifting protocol was inapplicable to the case at bar and that it overruled Morton "to the extent that [Morton] imposes a [bona fide occupational qualification] standard under the ADA . . ." Id. at 16891.
The Circuit explained that the framework established in Teamsters was inapplicable because UPS's policy discriminated against deaf individuals on its face and is a per se violation of the ADA. Id. at 16901. Where a policy violates the ADA on its face, the only question is whether the evidence set forth by the plaintiff supports liability. Id. at 16902. To establish liability under the ADA one must establish that he or she is a qualified individual. Id. A "qualified individual" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Id. at 16902, also see 42 U.S.C. §12111(8).
The Circuit held that once a plaintiff produces evidence to show that one or more class members are qualified to perform the job, the burden shifts to the employer to show either refute that showing by demonstrating that the employee is incapable of performing an essential job function, or demonstrate that it is imposing a qualification that is both job-related, and a business necessity.
The Ninth Circuit held that Bates had not meet his burden because he did not establish that any member of the class was qualified to drive a package car safely, an essential job function. Bates, Slip Opn. at 16909. Judge Berzon, a member of the original panel, argued in dissent that Bates had met his burden because he established that at least one of the class members could meet all the "normal threshold qualifications for eligibility -- that he is at least twenty-one years of age, possesses a valid driver's license, and has a clean riving record by UPS's local standards -- he has met his burden of proof in this regard. Id. at 16927 (dissenting). It then turned to UPS' affirmative defenses.
First, is DOT certification an "essential job function"? Essential job functions are "fundamental job duties of the employment position," not including marginal job functions. Id. at 16903. A number of criteria apply, including: "the employer's judgment as to what functions of the job are essential," 42 U.S.C. §12111(8); job descriptions prepared before advertising or interviewing applicants, id.; "[t]he amount of time spent on the job performing the function," 29 C.F.R. §1630.2(n)(3)(iii); "[t]he consequences of not requiring the [applicant or employee] to perform the function." Id. §1630.2(n)(3)(iv); and the work experience of current and former employees. Id. §1630.2(n)(3)(vi), (vii). An additional consideration is whether the employer requires all employees to abide by the claimed essential function. Bates, Slip. Opn. at 16903. It is the employer's burden to put forth evidence to establish the essential functions of the job. Id. at 16906. The Ninth Circuit concluded that UPS failed to establish that DOT certification was an essential job function because UPS did not apply the entire DOT test to all of its employees, thus the test was a qualification standard. Id. at 16907-8.
Second, if DOT certification is not an "essential job function," then is it a lawful "qualification standard"? Qualification standards, such as "employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities " are not lawful under the ADA, "unless the standard, test or other selection criteria as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity." 42 U.S.C. §12112(b)(6).
To establish that the qualification standard is job-related, the employer must show that "the qualification standard fairly and accurately measures the individual's actual ability to perform the essential functions of the job." Bates, Slip Opn. at 16915 [citations omitted]. In order to demonstrate that the qualification standard is consistent with business necessity, the employer must show that it "'substantially promote[s]' the business's needs. Id. at 16916 [citations omitted]. With respect to a safety-based qualification standard, courts should also consider the "'magnitude of the possible harm as well as the probability of occurrence.'" Id. Finally, the employer must show that "no reasonable accommodation currently available would cure the performance deficiency or that such reasonable accommodation poses an 'undue' hardship' on the employer." Id. at 16917 [citations omitted]. The Court remanded this issue for determination consistent with its opinion. Id. at 1920.
In evaluating whether UPS successfully established its policy of imposing the DOT certification was a business necessity, the district court applied the analysis used in Morton, which required a showing similar to the one used for safety qualifications under the Title VII and the Age Discrimination Employment Act bona fide occupational standard. Id. at 16914-15. The Ninth Circuit held that this was the incorrect analysis and that the criteria that an employer must meet included the statutory components of the business necessity defense. In other words, in order to make a showing that there of a business necessity defense and employer must show that the qualification standard is job-related, consistent with business necessity, and that performance cannot be accomplished by reasonable accommodation. Id. at 16915. The Circuit remanded for further determination consistent with its holding. Id. at 16890-91.
The practical effect of the Bates decision is that a safety standard imposed by an employer must be either an essential job function or a business necessity. To qualify as an essential job function, the safety standard should (1) be an essential job function in the employer's judgment, (2) be included in the employer's job descriptions prepared before advertising or interviewing applicants, (3) not be a marginal duty, (4) result in adverse consequences if the standard is not met, and (5) be applied to all employees. If the safety standard be considered a business necessity, the employer must show that the safety-based qualification standard is job-related, consistent with business necessity, and that performance cannot be accomplished by reasonable accommodation.
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