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9th Circuit: BFOQ Standard Should Not Have Been Applied to Hearing Test

   5/16/2008

1/11/08 4:45 PM

9th Circuit: BFOQ Standard Should Not Have Been Applied to Hearing Test

By Chuck Thompson

The full 9th U.S. Circuit Court of Appeals reversed an earlier three-judge panel that imposed a heavy burden on employers who use certain tests to determine if applicants with disabilities qualify for jobs.

The three-judge panel held that the Americans with Disabilities Act (ADA) required United Parcel Service (UPS) to show that substantially all hearing-impaired drivers posed a safety risk and that there was no more practical way, other than its hearing test, to determine which hearing-impaired drivers were unsafe. Instead, the full court held that UPS was required to show only that the test it used was consistent with business necessity and was job-related.

UPS requires all drivers to pass a hearing test approved by the Department of Transportation (DOT). However, the DOT regulations do not require that UPS apply the hearing test to drivers who operate local delivery trucks weighing less than 10,000 pounds. A number of hearing-impaired drivers who wished to drive these local delivery trucks challenged the application of the test to them.

The trial court and the three-judge panel of the 9th Circuit held that UPS’ administering of the hearing tests was facially discriminatory and violated the ADA because it was directly aimed at persons with disabilities under the ADA—individuals with hearing impairments. (UPS did not challenge the assertion that these individuals had ADA disabilities.)

The three-judge panel next considered whether UPS could assert an affirmative defense and, if so, what the appropriate standard was for proving the defense. The panel applied the so-called BFOQ (bona fide occupational qualification) standard. The BFOQ defense is one that exists under Title VII. The panel effectively borrowed this defense from Title VII and applied it to ADA cases.

However, the BFOQ defense carries a high burden of proof and requires the employer to show that substantially all hearing-impaired drivers pose a safety risk and that there is no better way than the test used by UPS to determine which drivers pose a safety risk.

The full 9th Circuit reviewed the three-judge panel’s decision and reversed, holding that the imposition of the BFOQ standard was inappropriate under the ADA.

Instead, the full appeals court ruled that UPS should be allowed to prove the lower standard of whether the hearing tests were related to safe driving and that a reasonable accommodation was not available. Unavailability of an accommodation requires a showing that there is no reasonable accommodation that will enable the employee to meet job requirements or that the accommodation imposes an undue burden on the employer. In addition, the court held that the drivers had to show that they could safely operate the UPS local delivery vehicles despite their hearing problems.

Bates v. United Parcel Service Inc ., 9th Cir., No. 04-17295 (en banc) (Dec. 28, 2007).

Professional Pointer: The use of pre-employment tests to screen applicants has many pitfalls under various employment laws. Employers should use great caution in using any broad tests that tend to exclude persons in any protected category and be sure any test strongly relates to an important job function. Consultation with legal counsel is particularly important on this issue.

Chuck Thompson is an attorney with Malone, Thompson, Summers & Ott LLC, a Worklaw® Network firm in Columbia, S.C.

Related Resource:

ADA Toolkit

Editor’s Note: This article should not be construed as legal advice.

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