Court Report

Jan 1, 2007

HR Magazine, January 2007Exclusion Of Deaf Drivers Enjoined

Bates v. United Parcel Service, 9th Cir., No. 04-017295 (Oct. 10, 2006).

An employer may not categorically exclude deaf individuals from job positions driving commercial vehicles, where the drivers would not otherwise be regulated by the Department of Transportation (DOT), according to the 9th U.S. Circuit Court of Appeals. To determine the individuals’ ability to perform the job, the employer must use some form of individualized assessment, rather than a job qualification standard that creates a categorical exclusion.

United Parcel Service Inc. (UPS) required all applicants for package-car driver positions to pass the Department of Transportation (DOT) physical, which disqualifies individuals from driving commercial vehicles if they are unable to perceive and understand a “forced whispered voice” or have a hearing loss of greater than 40 decibels.

While the DOT applies this standard only to individuals driving vehicles with a gross vehicle weight of at least 10,001 pounds, UPS applied the standard to applicants for all package-car driver positions, regardless of the weight of the vehicle. (UPS’ fleet contained 5,902 vehicles with a weight of less than 10,001 pounds.)

Eric Bates, a named plaintiff in the class-action lawsuit against UPS, challenged UPS’ application of the DOT standard under the Americans with Disabilities Act (ADA) and California state law for positions in which individuals would drive non-DOT-regulated vehicles.

UPS argued that the plaintiffs lacked standing to bring the ADA lawsuit, because they had not proved they were qualified individuals with a disability. That is, they had not established that they were able to safely drive a package car. UPS also argued that its categorical exclusion of deaf individuals was lawful under the ADA, because it was justified by business necessity.

The 9th Circuit, affirming the district court’s decision, held that the plaintiff class had standing to bring the ADA lawsuit, because at least one named plaintiff satisfied the qualifications for the package-car driver position (other than passing the DOT physical). These qualifications included having completed an application, being at least 21 years of age, possessing a valid driver’s license, having a clean driving record and passing a UPS road test.

UPS then had the burden of proving that the policy was justified by business necessity. The 9th Circuit ruled that UPS failed to satisfy this burden, determining that all of the studies offered to prove that deaf drivers present a greater risk of accidents than non-deaf drivers were unpersuasive. According to the 9th Circuit, the studies did not correspond to the DOT standard, they were outdated and did not take advantage of advances in technology that could assist deaf drivers, and they were based on subjective beliefs of hearing drivers.

The appeals court ultimately enjoined UPS from using the DOT standard to categorically exclude all deaf individuals from package-car driver positions for vehicles weighing less than 10,001 pounds. UPS may preclude a deaf individual from driving a package car, but only if it determines that the applicant is unsafe to drive a non-DOT-regulated package car after conducting an individualized assessment.

By Monica M. Weber, an attorney in the law firm of Millisor & Nobil, a Worklaw® Network firm in Cleveland.

Manager Who Refused To Sign Agreement Must Arbitrate

Hardin v. First Cash Financial Services Inc., 10th Cir., Nos. 05-6090, 05-6107 (Oct. 6, 2006).

A manager who refused to sign her employer’s arbitration agreement and protested the policy to her supervisor still must arbitrate her gender discrimination claims after she subsequently was terminated, the 10th U.S. Circuit Court of Appeals ruled.

At issue in the case was whether Shelle Hardin was bound by First Cash Financial Services Inc.’s (FCFS) arbitration policy simply because she continued her employment beyond the date when FCFS advised employees that the agreement would go into effect.

Hardin had been a manager for one of FCFS’ Oklahoma pawn shop stores since 1997. In December 2002, FCFS advised employees that it was developing a dispute resolution program (DRP) that would require its employees to arbitrate any employment-related legal disputes with the company. At that time, FCFS provided employees with copies of the DRP policy and a dispute resolution agreement.

FCFS also advised employees that they could immediately opt into the program voluntarily, or wait until March 1, 2003, at which time their continued employment with the company would bind them to the policy’s terms. The agreement document further specifically advised employees that they could sign the agreement voluntarily, but that, as of March 1, 2003, the policy would go into effect even if they refused to sign.

Hardin informed her supervisor that she specifically refused to consent to the DRP and would not sign the agreement. She stated further that, although she would not quit her job, her continued employment was not intended to serve as her acceptance of the policy. Hardin’s supervisor told her that her continued employment still would bind her to the policy.

Early in 2003, prior to March 1, FCFS posted a notice reminding employees that their employment beyond March 1 would constitute their agreement to arbitrate all employment disputes against the company. Hardin continued her employment, and she never raised any further issue with her supervisor or anyone else about the policy.

In December 2003, FCFS terminated Hardin. When she filed a lawsuit in district court alleging gender discrimination, FCFS filed a motion to compel arbitration, which the district court denied.

On appeal, FCFS argued that the district court did not properly apply Oklahoma state law. The appeals court agreed for two reasons.

First, it determined that Oklahoma state law, though not perfectly clear on the point, did provide that an employee’s continued employment could be used as a basis to manifest agreement with a new contractual term of employment.

Second, and more important, the court found that FCFS had clearly stated that its offer was that employees who continued to work for the company after March 1 would be bound by the DRP. Though she did protest, Hardin nevertheless accepted the offer by continuing to work after March 1, 2003. The appeals court granted FCFS’ appeal and sent the case back to the district court with instructions to grant the motion to compel arbitration.

By James B. Thelen, an attorney with the law firm of Miller, Canfield, Paddock and Stone PLC in Lansing, Mich.

Volunteer Position Treated as Employment

Rafi v. Thompson, D.C. Cir., No. 02-2356 (Oct. 30, 2006).

A volunteer position may be treated as employment for purposes of federal antidiscrimination statutes under certain circumstances, the U.S. Circuit Court of Appeals for the District of Columbia determined.

Dr. Syed Rafi applied for volunteer positions as a researcher both with the National Human Genome Research Institute and the National Institutes of Health, but was turned down for the positions. Rafi claimed discrimination under both Title VII and the Age Discrimination in Employment Act, and ultimately filed a lawsuit against the U.S. Department of Health and Human Services.

The department filed a motion for summary judgment, arguing that the positions for which Rafi had applied consisted of unpaid volunteer work and, therefore, could not be considered as employment for purposes of the statutes. The district court denied the motion, letting the case go forward on that issue.

On appeal, the D.C. Circuit said that whether the positions could be viewed as employment turned on the “nature and extent of the compensation that volunteer researchers receive.” In his response to the motion for summary judgment, Rafi argued that one benefit of the volunteer positions was a “clear pathway to employment.” The court held that if, in fact, a connection existed, such benefit could constitute sufficient compensation to bring volunteers within the reach of the federal statutes.

Using statistical evidence based on the department’s own records, Rafi was able to show that nearly 10 percent of volunteers hired between 1999 and 2005 went on to full-time employment within the department. The court found this to be “a high enough conversion percentage to indicate that special volunteers do have a path to permanent employment.”

By Maria Greco Danaher, an attorney with the law firm of Dickie, McCamey & Chilcote in Pittsburgh.


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