Bates v. United Parcel Service, Inc.

Decision Date28 December 2007
Docket NumberNo. 04-17295.,04-17295.
Citation511 F.3d 974
PartiesEric BATES; Bert Enos; Babaranti Oloyede; Eric Bumbala; Edward Williams, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. UNITED PARCEL SERVICE, INC., dba UPS, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Mark A. Perry (argued), Gibson, Dunn & Crutcher, LLP, Washington, D.C., Christopher J. Martin, Gibson Dunn & Crutcher, LLP, Palo Alto, CA, Rachel S. Brass and Amanda M. Rose, Gibson, Dunn & Crutcher, LLP, San Francisco, CA, for the defendant-appellant.

Laurence W. Paradis (argued) and Kevin M. Knestrick, Disability Rights Advocates, Berkeley, CA, Todd M. Schneider and Guy B. Wallace, Schneider & Wallace, San Francisco, CA, for the plaintiffs-appellees.

James L. Lee, Carolyn L. Wheeler, Vincent J. Blackwood and Barbara L. Sloan (argued), Equal Employment Opportunity Commission, Washington, D.C., for amicus curiae Equal Employment Opportunity Commission.

Claudia Center and Lewis Bossing, The Legal Aid Society-Employment Law Center, San Francisco, CA, for amici curiae American Association of People with Disabilities et al.

Rae T. Vann, McGuiness Norris & Williams, LLP, Washington, D.C., for amicus curiae Equal Employment Advisory Council.

Robin S. Conrad and Shane Brennan, National Chamber Litigation Center, Inc., for amicus curiae Chamber of Commerce of the United States of America.

Robert Digges, Jr., American Trucking Associations, Inc., Alexandria, VA, J. Brett Busby and Jeffrey L. Oldham, Mayer, Brown, Rowe & Maw LLP, Houston, TX, for amicus curiae American Trucking Associations, Inc.

Appeal from the United States District Court for the Northern District of California; Thelton E. Henderson, Senior District Judge, Presiding. D.C. No. CV-99-02216-TEH.

Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, STEPHEN REINHARDT, PAMELA ANN RYMER, MICHAEL DALY HAWKINS, SIDNEY R. THOMAS, BARRY G. SILVERMAN, M. MARGARET McKEOWN, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, MARSHA S. BERZON, RICHARD R. CLIFTON, MILAN D. SMITH, JR., and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge MCKEOWN; Partial Concurrence and Partial Dissent by Judge BERZON.

McKEOWN, Circuit Judge:

This appeal under the Americans with Disabilities Act (ADA) requires us to consider the intersection of a safety-based qualification standard and the "business necessity" defense. United Parcel Service (UPS) imposes a Department of Transportation (DOT) hearing standard on all package-car drivers, even though the DOT standard is federally mandated only for higher-weight vehicles. A class of hearing-impaired UPS employees and applicants who cannot meet the DOT hearing requirement challenges UPS's policy under Title I of the ADA, 42 U.S.C. §§ 12101-12213, the California Fair Employment and Housing Act (FEHA), Cal. Gov't Code §§ 12900-12996, and the Unruh Civil Rights Act (Unruh Act), Cal. Civ.Code § 51.1

Bates accepts, as he must, that UPS may lawfully exclude individuals who fail the DOT test from positions that would require them to drive DOT-regulated vehicles, i.e., vehicles exceeding a gross vehicle weight rating (GVWR) of 10,000 pounds. See Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 570, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). Bates contends, however, that UPS may not lawfully exclude hearing-impaired individuals from consideration for positions that involve vehicles whose GVWR is less than 10,001 pounds.

After a bench trial on liability, the district court found UPS liable on all of Bates's claims, enjoined UPS from using the blanket qualification standard, and required individualized assessment of candidates for the package-car driver positions. The court founded its analysis on the pattern-or-practice burden-shifting framework of International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). In determining whether UPS met its asserted "business necessity" defense, the district court looked to our earlier decision involving hearing-impaired UPS drivers, Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir.2001). Morton imported into its ADA analysis concepts from both the traditional Title VII business necessity defense to disparate impact claims and the "bona fide occupational qualification" (BFOQ) standard from Title VII disparate treatment challenges to a proscribed classification.

We granted rehearing en banc to consider the contours of a claim that an employer's safety qualification standard discriminates against otherwise "qualified" persons with disabilities, see 42 U.S.C. § 12112(a), (b)(6), and the showing required of an employer to successfully assert the business necessity defense to use of such qualification under 42 U.S.C. § 12113(a). Because this case involves a facially discriminatory qualification standard, we conclude that the Teamsters' burden-shifting protocol is inapplicable. In addition, we over-rule Morton to the extent that it imposes a BFOQ standard under the ADA, as the plain language of the ADA does not support such a construction. Because the district court considered this case under the framework of Teamsters and Morton, we vacate and remand for further proceedings. We do not consider the merits of the FEHA claim because the pertinent FEHA law has changed since the district court issued its decision. Finally, following our decision in Bass v. County of Butte, 458 F.3d 978 (9th Cir.2006), we reverse the district court's finding that UPS violated the Unruh Act.

BACKGROUND
UPS AND PACKAGE-CAR DRIVERS

UPS package-car drivers deliver and pick up packages for UPS in the familiar brown UPS trucks. UPS employs more than 320,000 employees in the United States, over 70,000 of whom are package-car drivers.

When an opening for a driving position becomes available, UPS contacts the individual in that UPS center with the highest seniority who has bid on such a position.2 If that person is not interested, UPS moves down the list in descending seniority order until it finds an interested employee. The applicant must satisfy several requirements, which vary from district to district, but generally include (1) having completed an application; (2) being at least twenty-one years of age; (3) possessing a valid driver's license; and (4) having a "clean" driving record. Once the seniority threshold and other prerequisites to employment are met, all applicants for a package-car driver position must pass both UPS's road test and the DOT physical examination required of drivers of commercial vehicles over 10,000 pounds. UPS has a policy of hiring only drivers who can satisfy DOT standards.

At issue in this appeal is the hearing standard that is part of the DOT physical. An individual satisfies the DOT hearing standard if he

[f]irst perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5-1951.

49 C.F.R. § 391.41(b)(11). According to the district court, the forced-whispered standard requires that potential drivers not only hear the sounds made but understand the words spoken.

Unlike UPS, which requires drivers of all package cars to pass the DOT physical, the DOT imposes this standard only for those driving vehicles with a GVWR of at least 10,001 pounds. See 49 U.S.C. § 31132(1)(A); 49 C.F.R. § 391.41. A "gross vehicle weight rating" is the actual weight of the vehicle plus any cargo capacity. As of October 2003, UPS's fleet contained 65,198 vehicles, of which 5,902 vehicles had a GVWR of less than 10,001 pounds. The GVWR of the lighter vehicles ranged from 7,160 to 9,318 pounds, with the majority of these vehicles weighing 8,600 pounds. By way of comparison, automobiles, which include passenger cars, sport utility vehicles, light trucks and mini-vans, average 3,240 pounds.3

PROCEEDINGS IN THE DISTRICT COURT

In November 2001, the district court certified a nationwide federal class on the ADA claim that includes "[t]hose persons throughout the United States who (i) have been employed by and/or applied for employment with [UPS] at any time since June 25, 1997, up through the conclusion of this action, (ii) use sign language as a primary means of communication due to a hearing loss or limitation, and (iii) allege that their rights have been violated under Title I of the ADA on account of [UPS's] policies and procedures."4 The federal class was certified under Federal Rule of Civil Procedure 23(b)(2) to seek primarily injunctive and declaratory relief. As part of its post-trial findings and conclusions, the district court modified the composition of the class on the "driving issue" to include "only those individuals who failed or would fail the DOT hearing test." See Fed.R.Civ.P. 23(c)(1)(C) ("An order [certifying an action as a "class action"] under Rule 23(c)(1) may be altered or amended before final judgment.").

Phase one of the bifurcated bench trial was conducted over several weeks in the spring and fall of 2003. At the close of Bates's evidence, UPS moved pursuant to Federal Rule of Civil Procedure 52(c) for judgment on partial findings. UPS argued that its invocation of the DOT hearing standard is lawful because Bates failed to show that (1) any class member meets the DOT standard and thus failed to show that any class member satisfies the essential functions of the job, or (2) that any reasonable accommodation exists that would permit class members to pass the DOT hearing test. In the alternative, UPS moved to decertify the class pursuant to Federal Rule of Civil Procedure 23(c)(1) and (d), contending that Bates failed to show that...

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