Bates v. United Parcel Service, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC BATES; BERT ENOS; 

BABARANTI OLOYEDE; ERIC

BUMBALA; EDWARD WILLIAMS, on

behalf of themselves and all others No. 04-17295

similarly situated,

Plaintiffs-Appellees,  D.C. No.

CV-99-02216-THE

v. OPINION

UNITED PARCEL SERVICE, INC., dba

UPS,

Defendant-Appellant.



Appeal from the United States District Court

for the Northern District of California

Thelton E. Henderson, District Judge, Presiding

Argued and Submitted

September 15, 2005—San Francisco, California

Filed October 10, 2006

Before: Betty B. Fletcher, John R. Gibson,* and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

*The Honorable John R. Gibson, Senior United States Circuit Judge for

the Eighth Circuit, sitting by designation.

17473

BATES v. UNITED PARCEL SERVICE 17477

COUNSEL

Christopher J. Martin and Rachel S. Brass, Gibson, Dunn &

Crutcher LLP, Palo Alto, California, Mark A. Perry and

Rachel A. Clark, Gibson, Dunn & Crutcher LLP, Washington,

D.C., for the defendant-appellant.

Laurence W. Paradis and Caroline A. Jacobs, Disability

Rights Advocates, Oakland, California, Todd M. Schneider

and W.H. Willson, Schneider & Wallace, San Francisco, Cali-

fornia, for the plaintiffs-appellees.

Claudia Center and Lewis Bossing, The Legal Aid Society —

Employment Law Center, San Francisco, California, for amici

curiae American Association of People with Disabilities et al.

17478 BATES v. UNITED PARCEL SERVICE

Ann Elizabeth Reesman, McGuiness Norris & Williams, LLP,

Washington, D.C., for amicus curiae Equal Employment

Advisory Council.

Barbara L. Sloan, Equal Employment Opportunity Commis-

sion, Washington, D.C., for amicus curiae Equal Employment

Opportunity Commission.

OPINION

BERZON, Circuit Judge:

This case concerns whether United Parcel Service (UPS)

may categorically exclude individuals from employment posi-

tions as “package-car drivers” because they cannot pass a

United States Department of Transportation (DOT) hearing

standard that does not apply to the vehicles in question. A

class of UPS employees and applicants unable to pass the

DOT hearing standard — a class we refer to throughout this

opinion as “Bates” (the last name of the original class’s lead

plaintiff) — contends that this policy violates the Americans

with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and

two California laws: (1) the Fair Employment and Housing

Act (FEHA), CAL. GOV’T CODE §§ 12900-12996; and (2) the

Unruh Civil Rights Act (Unruh Act), CAL. CIV. CODE § 51.

After the first phase of a bifurcated trial, the district court

held in a detailed opinion that UPS violated the ADA, the

FEHA, and the Unruh Act, and ordered injunctive relief.1 At

1

The district court decision briefly mentions California Government

Code Section 12920, which is part of the FEHA and provides, in pertinent

part, that “[i]t is hereby declared as the public policy of this state that it

is necessary to protect and safeguard the right and opportunity of all per-

sons to seek, obtain, and hold employment without discrimination or

abridgment on account of . . . physical disability.” The district court deci-

sion noted that “a violation of Plaintiffs’ rights under federal and state

BATES v. UNITED PARCEL SERVICE 17479

the same time, the district court denied UPS’s motion for

judgment on partial findings or, in the alternative, for class

decertification. On appeal, UPS contends that (1) Bates did

not establish that any class members are “qualified”; (2) UPS

satisfied its burden under the business necessity defense of the

ADA; (3) the plaintiff class should be decertified; (4) the

court’s injunction was an abuse of discretion; and (5) UPS did

not violate the FEHA or the Unruh Act.

Much of the basic legal ground covered in this appeal was

covered in Morton v. United Parcel Service, Inc., 272 F.3d

1249 (9th Cir. 2001), a case in which another deaf UPS

employee challenged the company’s use of the DOT hearing

standard for smaller vehicles to which the standard does not

apply. Because, unlike this case, Morton came to us on sum-

mary judgment, we did not resolve the validity of UPS’s use

of the DOT hearing standard. We did, however, spell out

some of the applicable legal principles, including burdens of

proof, for deciding the question on a completely developed

record. There is such a record here. On that record, we affirm

the district court’s factual findings as not clearly erroneous

and its holding that UPS violated the ADA as consistent with

the applicable legal standards. We also affirm the district

court’s denial of UPS’s motion to decertify the class and the

terms of the injunction issued. Because the district court’s

injunction can be upheld on ADA grounds alone and because

the pertinent FEHA law has changed since the district court’s

decision, we do not at this time review the FEHA claim.

Finally, we reverse the district court’s finding that UPS vio-

anti-discrimination statutes would clearly violate the public policy of pro-

tecting such rights.”

It appears that the district court relied on Section 12920 only for public

policy informing its interpretation of FEHA, not as the basis for a separate

cause of action. We therefore do not consider whether Section 12920

could be the basis for a separate cause of action either under the FEHA

or in tort.

17480 BATES v. UNITED PARCEL SERVICE

lated the Unruh Act, as a recent decision by this court requires

us to do so.

I. Background

UPS package-car drivers deliver and pick up packages for

UPS in the familiar brown UPS trucks. An individual who

wishes to become a UPS package-car driver must be an

employee of UPS in a qualifying position and must “bid” on

a package-car driving position. When an opening for a driving

position becomes available at a particular UPS center, 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, the human resources department moves down the

list of individuals who have bid on a position in seniority

order until it finds an employee interested in the position.

Once UPS has located such an employee, that individual must

demonstrate that she satisfies several requirements. The

requirements vary somewhat from district to district but gen-

erally include (1) having completed an application; (2) being

at least twenty-one years of age; (3) possessing a valid driv-

er’s license; (4) having a “clean driving record”; (5) passing

a UPS road test; and (6) passing the physical exam the DOT

requires drivers of commercial vehicles to pass. Standards for

the “clean driving record” requirement vary, but a common

one is that a driver not have more than three moving viola-

tions or any convictions for driving while intoxicated within

the previous three years. If an applicant demonstrates that she

satisfies all of these requirements, she proceeds to driver

training, after which she begins a probationary period. Upon

successful completion of the probationary period, she

becomes a package-car driver.

At issue in the present appeal is the hearing standard that

2

UPS is divided into sixty-one districts, each of which includes various

package delivery “centers” covering different geographical areas.

BATES v. UNITED PARCEL SERVICE 17481

is part of the DOT physical. An individual satisfies the DOT

hearing standard if she

[f]irst perceives a forced whispered voice in the bet-

ter 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.

Although UPS requires drivers of all package cars to pass

the DOT physical, the DOT does not so mandate. Instead, the

DOT requires it only for those driving vehicles with a “gross

vehicle weight” or “gross vehicle weight rating” (GVWR) of

at least 10,001 pounds. See 49 U.S.C. § 31132(1)(A); 49

C.F.R. § 391.41. A vehicle’s “gross vehicle weight” is the

actual weight of the vehicle plus any cargo in the vehicle. A

vehicle’s GVWR is determined by the manufacturer and is

equal to the sum of the weight of the vehicle and the maxi-

mum load the manufacturer believes the vehicle can carry. As

of October 2003, UPS’s fleet contained 5902 vehicles with a

GVWR of less than 10,001 pounds. The GVWR of those

vehicles ranged from 7160 pounds to 9318 pounds.

The class accepts, as it must, that UPS may lawfully

exclude individuals who fail the DOT test from positions that

would require them to drive DOT-regulated vehicles. See

Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 570 (1999).

Bates contends, however, that UPS may not lawfully exclude

deaf individuals from consideration for positions that require

17482 BATES v. UNITED PARCEL SERVICE

them to drive only vehicles whose gross vehicle weight and

GVWR are less than 10,001 pounds.

The district court found that Bates satisfied his prima facie

case based upon a combination of two factors: first, UPS’s

blanket exclusion of deaf individuals, and second, the creden-

tials of at least one named plaintiff, Babaranti Oloyede, and

at least one class member, Elias Habib, who were “qualified”

by virtue of having satisfied all prerequisites for the driving

position other than those connected to the DOT standard. The

court further concluded that Bates did not have the burden to

establish at this stage that any plaintiffs were “qualified” in

the sense that they are capable of driving safely. Accordingly,

the district court denied UPS’s motion to decertify the class,

rejecting UPS’s argument that the class lacked a representa-

tive qualified for the driving positions in question.3

The district court next found that UPS failed to satisfy its

burden under the business necessity defense and that the pol-

icy, therefore, violates the ADA (and, accordingly, the FEHA

and the Unruh Act as well. Based on these conclusions, the

district court issued an injunction prohibiting UPS from cate-

gorically excluding individuals who fail the DOT standard

from consideration for positions driving non-DOT-regulated

vehicles.

II. Jurisdiction

UPS appeals pursuant to 28 U.S.C. § 1292(a)(1), which

grants us jurisdiction over “[i]nterlocutory orders of the dis-

trict courts . . . granting . . . injunctions . . . , except where a

direct review may be had in the Supreme Court.” UPS’s

appeal of the district court’s order granting a permanent

injunction falls squarely within the scope of § 1292(a)(1). We

3

The district court’s findings of fact on this and other matters are

reviewed in greater detail later, as they become pertinent.

BATES v. UNITED PARCEL SERVICE 17483

therefore have jurisdiction under § 1292(a)(1) to review the

district court’s injunctive order.

Section 1292(a)(1) also grants us jurisdiction to review the

legal and factual decisions made by the district court that

underlie its injunctive order where — as here — those issues

“are inextricably bound up with the injunction.” See Idaho

Watershed Project v. Hahn, 307 F.3d 815, 824 (9th Cir.

2002); TransWorld Airlines, Inc. v. Am. Coupon Exch., Inc.,

913 F.2d 676, 680 (9th Cir. 1990); Marathon Oil Co. v.

United States, 807 F.2d 759, 764 (9th Cir. 1986). Such review

is particularly appropriate in cases like the present one, in

which the appeal is taken from a permanent, rather than pre-

liminary, injunction and “[t]he district court has completed its

consideration of the liability issue, retaining jurisdiction only

for an accounting of damages.” See Marathon, 807 F.2d at

764. Because the district court’s legal authority to grant the

injunction stemmed from its holding that UPS violated the

ADA and the California laws, those holdings are “inextricably

bound up” with its injunction. We therefore have jurisdiction

to review the district court’s liability determinations under

§ 1292(a)(1).

Similarly, § 1292(a)(1) provides us with jurisdiction to

review the denial of UPS’s motion on partial findings as well

the denial of its motion for class decertification; like the lia-

bility determinations, these motions, too, are “inextricably

bound up” with the injunction.4 See Paige v. California, 102

F.3d 1035, 1039-40 (9th Cir. 1996) (holding that when a class

certification order and an injunction granting class-wide relief

are appealed, courts have jurisdiction under § 1292(a)(1) over

4

Bates contends that we lack jurisdiction over the district court’s denial

of the motion for judgment on partial findings because UPS did not seek

certification of the issue pursuant to 28 U.S.C. § 1292(b), but his argument

is mistaken. When we have jurisdiction pursuant to § 1292(a), litigants

need not also meet the requirements of § 1292(b). See Armstrong v. Wil-

son, 124 F.3d 1019, 1021 (9th Cir. 1997); TransWorld Airlines, 913 F.2d

at 680.

17484 BATES v. UNITED PARCEL SERVICE

the class certification order because it is “inextricably bound

up” with the injunction); Immigrant Assistance Project of L.A.

County Fed’n of Labor (AFL-CIO) v. INS, 306 F.3d 842, 869

(9th Cir. 2002).5

III. “Qualified” Inquiry

UPS argues that, to establish a “prima facie case,” Bates

must satisfy all job prerequisites other than the challenged

DOT standard and prerequisites related to that standard (such

as completing UPS’s driving test and driving training), and

must also demonstrate an ability to drive “safely.” This argu-

ment is based on the ADA’s definition of a “qualified individ-

ual with a disability” as “an individual with a disability who,

with or without reasonable accommodation, can perform the

essential functions of the employment position that such indi-

vidual holds or desires.” 42 U.S.C. § 12111(8). See, e.g., Ken-

nedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)

(“A plaintiff bears the burden of demonstrating that she can

perform the essential functions of her job with or without rea-

sonable accommodation.”). The district court rejected this

argument, and so do we.

5

We reject Bates’ argument that we may not review the denial of the

class decertification motion, Paige and Immigrant Assistance Project not-

withstanding, because UPS did not petition for permission to appeal that

decision within the ten-day deadline imposed by Federal Rule of Civil

Procedure 23(f) for review of class certification decisions not otherwise

appealable. (UPS did apply to us for permission to appeal the original

class certification order pursuant to Rule 23(f), but we denied the applica-

tion.) Nothing within the language of the Rule 23(f), its authorizing statute

(28 U.S.C. § 1292(e)), or its history indicates that it is meant to provide

the exclusive route to obtaining appellate review or to impose time limits

on interlocutory appeals proper under other statutory provisions. See

Chamberlan v. Ford Motor Co., 402 F.3d 952, 957 (9th Cir. 2005) (inter-

nal quotation marks omitted) (surveying the purposes of Rule 23(f)); Blair

v. Equifax Check Servs., Inc., 181 F.3d 832, 833-35 (7th Cir. 1999) (sur-

veying the history of Rule 23(f) and observing that it was meant to expand

appellate jurisdiction).

BATES v. UNITED PARCEL SERVICE 17485

Initially, we note that we do not agree with the district

court’s conclusion that International Brotherhood of Team-

sters v. United States, 431 U.S. 324 (1977), is pertinent to this

case. Unlike cases involving individual or pattern-and-

practice disparate treatment, see, e.g., McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 800-03 (1973) (individual

disparate-treatment case); Int’l Bhd. of Teamsters, 431 U.S. at

334-36 (pattern-or-practice disparate-treatment case), this

case involves an employer’s facially discriminatory policy.

As a result, a burden-shifting protocol is unnecessary. The

fact to be uncovered by such protocols — whether the

employer discriminated on a proscribed basis — already has

been admitted. See Monette v. Elec. Data Sys. Corp., 90 F.3d

1173, 1182-83 (6th Cir. 1996) (noting that when a defendant

admits to taking account of disability status, the McDonnell

Douglas burden-shifting framework is unnecessary).6

For reasons developed below, however, we agree with UPS

that, to maintain this suit, Bates must establish that at least

one named plaintiff is “qualified” in the sense that the named

plaintiff satisfied all prerequisites other than those connected

to the DOT standard. Such a showing is necessary to establish

the class’s statutory standing to bring a lawsuit under the

ADA. See Melendez v. Ill. Bell Tel. Co., 79 F.3d 661, 668 (7th

Cir. 1996) (similarly recharacterizing as a standing contention

a defendant’s contention that a plaintiff in a disparate impact

Title VII case did not establish she was “qualified” as part of

her prima facie case). But, we do not agree with UPS that

Bates also bears the burden of establishing that at least one

class member is “qualified” in the sense that he can drive

“safely.” We reject that contention as structurally incompati-

6

Moreover, whether a plaintiff established a prima facie case in the

employment discrimination burden-shifting sense is moot after trial. At

that point, the relevant inquiry is simply whether the evidence presented

at trial supports a finding of a violation. See U.S. Postal Serv. Bd. of Gov-

ernors v. Aikens, 460 U.S. 711, 715 (1983); Costa v. Desert Palace, Inc.,

299 F.3d 838, 855-56 (9th Cir. 2002) (en banc), aff’d, 539 U.S. 90 (2003).

17486 BATES v. UNITED PARCEL SERVICE

ble with the statute’s affirmative business necessity defense,

as will appear.

A. Prerequisites

[1] The question of whether there is a named plaintiff who

may maintain this suit turns, in the first instance, on whether

there is such an individual who has statutory standing to pur-

sue this litigation. Title I of the ADA states that “any person

alleging discrimination on the basis of disability in violation

of any provision of this chapter” shall have the “powers, rem-

edies, and procedures set forth” in, inter alia, 42 U.S.C.

§ 2000e-5, which applies to Title VII employment discrimina-

tion claims. 42 U.S.C. § 12117(a). Section 2000e-5, in turn,

provides that any “person claiming to be aggrieved” may

bring suit. § 2000e-5(f)(1). The Sixth Circuit has stated that

“such broad language in the enforcement provision” of the

ADA “evinces a congressional intention to define standing to

bring a private action . . . as broadly as is permitted by Article

III of the Constitution.” MX Group, Inc. v. City of Covington,

293 F.3d 326, 334 (6th Cir. 2002)) (internal quotation marks

omitted) (considering Title II of the ADA and the Rehabilita-

tion Act, the former of which uses the “person alleging dis-

crimination” language in its enforcement provision and the

latter of which uses the “person aggrieved” language in its

enforcement provision). We agree with the Sixth Circuit that

to establish standing in this case under the ADA, Bates need

only establish the same prerequisites needed for Article III

standing.7 See Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992) (holding that a plaintiff must fulfill three

7

We do not decide whether prudential concerns limit third-party stand-

ing under the ADA, as that issue is not before us. Bates alleges that class

members, not third parties, were the victims of the discrimination at issue.

See Leibovitz v. N.Y. City Transit Auth., 252 F.3d 179, 186 (2d Cir. 2001)

(declining to decide the same issue in a Title VII case for similar reasons);

Patee v. Pac. Nw. Bell Tel., 803 F.2d 476, 478 (9th Cir. 1986) (holding

that prudential concerns limit standing in Title VII cases).

BATES v. UNITED PARCEL SERVICE 17487

requirements — injury in fact, causation, and redressability —

to establish Article III standing).

[2] When the plaintiff is a class, the class must establish

that at least one named plaintiff has standing in order for the

entire class to have standing. See Casey v. Lewis, 4 F.3d 1516,

1519, 1524 (9th Cir. 1993). Our question, therefore, is

whether Oloyede meets the statutory standing requirement.8

Our inquiry is limited to the first prong of analysis9 —

namely, whether Oloyede suffered an injury because of the

categorical bar posed by the DOT hearing standard that is suf-

ficiently “concrete and particularized” and “actual or immi-

nent” to satisfy the “injury in fact” requirement. See Lujan,

504 U.S. at 560-61.

Determining whether Oloyede was “injured” requires

examining whether Oloyede was “qualified” for the driving

position he desired in the sense that, aside from the DOT stan-

dard he is challenging and all prerequisites connected to that

standard, he meets the basic job requirements for the desired

position. In Melendez, the Seventh Circuit held that, to estab-

lish standing to bring a Title VII disparate impact case, a

plaintiff show she is “qualified” in this same sense, reasoning:

Absent direct evidence showing that a plaintiff was

not hired . . . because of a discriminatory employ-

ment practice, we assume that an unqualified plain-

tiff was not hired or promoted for the obvious reason

— that he was unqualified. Such a plaintiff would

8

Because we affirm the district court’s findings of fact with respect to

Oloyede, we do not consider the district court’s findings with respect to

Habib.

9

The second and third elements of the standing test are not at issue. If

Oloyede suffered injury, there was a causal connection between that injury

and UPS’s policy, and the injury is redressable at least by appropriate pro-

spective relief. Whether retrospective damages will be available is a ques-

tion not yet decided by the district court, so we do not address the

question.

17488 BATES v. UNITED PARCEL SERVICE

have no standing to sue . . . , for he could not claim

that he was injured, much less affected, by defen-

dant’s use of an employment practice with an alleg-

edly disparate impact.

79 F.3d at 668; see also Coe v. Yellow Freight Sys., Inc., 646

F.2d 444, 451 (10th Cir. 1981) (holding the same). Similarly,

absent evidence that a plaintiff challenging a facially discrimi-

natory qualification standard in an ADA case fulfilled those

prerequisites for the position not connected to the challenged

qualification standard, the plaintiff could not claim he was

aggrieved by the challenged qualification standard. Cf. Long

v. Coast Resorts, Inc., 267 F.3d 918, 924 (9th Cir. 2001)

(holding that plaintiffs did not have standing as “person[s]

aggrieved” to challenge alleged ADA violations affecting

only employees of a casino because plaintiffs were not them-

selves employees); Casey, 4 F.3d at 1524 (holding that a class

of prison inmates failed to establish that any named plaintiff

suffered actual injury from a prison policy prohibiting HIV-

positive individuals from obtaining employment in its food-

service department because the class did not show that any

named plaintiff was HIV-positive, was interested in a food-

service job, or applied for one).

Here, the district court found as a fact, based on the record

before it, that “Oloyede’s qualifications are sufficient to allow

[him] to proceed to the next step of UPS’s driver evaluation

and training.” The district court based this ultimate conclusion

on, inter alia, its finding that Oloyede’s driving record at the

time of trial satisfied the “clean driving record” requirement

in the pertinent UPS district, which states that individuals

must have no accidents or moving violations within the previ-

ous year, no convictions for driving while intoxicated within

the previous three years, and no more than three moving vio-

lations in the previous three years.

In addition, the district court found that Oloyede has been

employed by UPS since 1991 and that he first bid on a driving

BATES v. UNITED PARCEL SERVICE 17489

position in 1998, when, the record establishes, he held a job

from which he was qualified to bid on a driver position.10

Oloyede has bid on or expressed an interest in driving posi-

tions several times since then, most recently in 2003. Oloyede

currently has an “Article 22.3” position, which, according to

the record, means that he is currently contractually barred

from bidding on driving positions. The district court found,

however, that in 2000, Oloyede’s supervisor told him that he

would need to pass a hearing exam to become a package-car

driver. The court further found that, in general, “[i]f an appli-

cant cannot satisfy the DOT hearing standard, he or she will

not be allowed to move on to UPS’s driver training,” indicat-

ing that no direct assessment of Oloyde’s driving ability was

ever made.

[3] That Oloyede is not currently employed in a position

from which he is eligible to bid for a driving job is of no

moment. Oloyede was informed that he could not drive for

UPS under any circumstances. As a result, he was deterred

from remaining in a driver-eligible position and sought

instead to advance his career in some other fashion. An indi-

vidual thus influenced by an allegedly discriminatory policy

to avoid humiliating circumstances — here, languishing in a

dead-end position — is still aggrieved by that policy if he

maintains a continuing interest in the benefit to which access

has been denied — here, the opportunity to be individually

assessed for the package-car driver position. That Oloyede

accepted a position prohibiting him from applying for a job he

knew he could not have does not detract from the conclusion

that he was injured by the policy he challenges. See Pickern

v. Holiday Quality Foods Inc., 293 F.3d 1133, 1137-38 (9th

Cir. 2002) (holding that a disabled individual deterred from

patronizing a public accommodation due to a defendant’s fail-

10

The class certified by the district court covers individuals who “have

been employed by and/or applied for employment with United Parcel Ser-

vice (UPS) at any time since June 25, 1997 up through the conclusion of

this action.”

17490 BATES v. UNITED PARCEL SERVICE

ure to comply with the ADA has suffered an “injury in fact”);

cf. Teamsters, 431 U.S. at 365 (“If an employer should

announce his policy of discrimination by a sign reading

‘Whites Only’ on the hiring-office door, his victims would not

be limited to the few who ignored the sign and subjected

themselves to personal rebuffs.”).11 How Oloyede’s injury is

to be remedied if found to result from a violation of the ADA

is a question to be addressed at the relief stage, but does not

affect his ability to challenge the DOT standard that stood in

the way of his desired advancement.12

B. Driving “Safely”

UPS suggests that beyond compliance with prerequisites

unconnected to the DOT standard, Bates also bears the burden

of proving that at least one individual in the class was a “qual-

ified individual with a disability” in the sense of being able

to perform the “essential function” of driving “safely.” We

reject that contention as inconsistent with the language of the

ADA.

11

UPS also maintains that there is no “evidence in the record that

Oloyede had the requisite seniority to drive at his facility before becoming

an Article 22.3 employee.” This fact, even if true, is also of no moment,

as UPS’s policy does not require a certain level of seniority, but rather

encompasses a seniority preference.

12

For similar reasons, UPS’s contention that the “claims or defenses” of

Oloyede are not “typical of the claims or defenses of the class,” as

required by Federal Rule of Civil Procedure 23(a)(3), fails. Citing East

Texas Motor Freight System, Inc. v. Rodriguez, UPS contends that

Oloyede must be “qualified” in the sense that he satisfied the basic prereq-

uisites for the driving position and thus is “typical” of the class and sub-

class he seeks to represent. See 431 U.S. 395, 403 (1977).

We review class certification decisions for abuse of discretion, see

Smith v. Univ. of Wash., Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000),

and hold — for the reasons recited in the text — that the district court did

not abuse its discretion by finding Oloyede qualified in the pertinent sense

and hence “typical.”

BATES v. UNITED PARCEL SERVICE 17491

1. Statutory Provisions and UPS’s Contentions

Subsection (a) of § 12112 of the ADA, headed “General

rule,” provides the following: “No covered entity shall dis-

criminate against a qualified individual with a disability

because of the disability of such individual in regard to job

application procedures, the hiring, advancement, or discharge

of employees, employee compensation, job training, and other

terms, conditions, and privileges of employment.”13 Subsec-

tion (8) of § 12111 defines a “qualified individual with a dis-

ability” as “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.” § 12111(8).

Subsection (b) of § 12112, headed “Construction,” states

that “[a]s used in subsection (a) of this section, the term ‘dis-

criminate’ includes” seven types of employer actions — as

pertinent here,

using qualification standards, 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 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.14

42 U.S.C. § 12112(b)(6).

Section 12113(a), headed “In general,” describes the

defenses available to employers:

13

The parties agree that UPS is a “covered entity” within the meaning

of § 12111(2), (5) and that individuals who cannot pass the DOT hearing

standard are “disabled” within the meaning of § 12102(2).

14

Bates does not challenge UPS’s standard under § 12112(d), which

covers in detail the propriety of medical examinations under the ADA. We

therefore do not reach how § 12112(d) might apply in the present case.

17492 BATES v. UNITED PARCEL SERVICE

It may be a defense to a charge of discrimination

under this chapter that an alleged application of qual-

ification 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, as

required under this subchapter.

[4] UPS’s hearing standard is clearly a “qualification stan-

dard[ ] . . . that screen[s] out . . . a class of individuals with

disabilities,” § 12112(b)(6). On its face, the standard excludes

individuals whom the parties agree are “disabled” from con-

sideration for driving positions. Thus, UPS’s use of the hear-

ing standard is “discrimination” under § 12112(b)(6), “unless

the standard . . . is shown to be job-related for the position in

question and is consistent with business necessity.”

§ 12112(b)(6).

[5] The word “unless” suggests that UPS bears the burden

under § 12112(b)(6) of establishing that the standard is job-

related and consistent with business necessity. See NLRB v.

Ky. River Cmty. Care, Inc., 532 U.S. 706, 711 (2001) (stating

the “general rule of statutory construction that the burden of

proving justification or exemption under a special exception

to the prohibitions of a statute generally rests on one who

claims its benefits” (internal quotation marks omitted)). We

have noted that “the two versions of the general business

necessity defense,” in §§ 12112(b)(6) and 12113(a), are “in-

tended to encompass the same basic requirements,” Morton,

272 F.3d at 1257 n.8, and have held that the burden of prov-

ing that a qualification standard is job-related and consistent

with business necessity under § 12113(a) falls squarely on the

defendant, see id. at 1258; Cripe v. City of San Jose, 261 F.3d

877, 890 (9th Cir. 2001). It follows that the defendant has the

burden of establishing that a qualification standard is job-

BATES v. UNITED PARCEL SERVICE 17493

related and consistent with business necessity under both

§§ 12112(b)(6) and 12113(a).

UPS argues, however, that even if this is so, plaintiffs must

first establish that the challenged standard excludes individu-

als who can perform the “essential function” of driving “safe-

ly.” UPS’s argument is premised on: (1) § 12112(a)’s

statement that “[n]o covered entity shall discriminate against

a qualified individual with a disability”; (2) § 12111(8)’s defi-

nition of “qualified individual with a disability” as “an indi-

vidual with a disability who, with or without reasonable

accommodation, can perform the essential functions of the

employment position that such individual holds or desires”;

and (3) our cases holding that plaintiffs ordinarily must estab-

lish that they are “qualified individuals with disabilities.” See,

e.g., Kennedy, 90 F.3d at 1481. If UPS were correct, then, as

a practical matter, the plaintiff would bear the burden of prov-

ing that a categorical and specific safety qualification is not

valid under the statute, by showing that at least some individ-

uals who cannot meet it are capable of driving safely. That

distribution of the burden of proof in a case such as this one

is incompatible with the statutory scheme.

2. Statutory Analysis

Section 12112(a) does not stand alone in the ADA. Section

12112(b), which includes § 12112(b)(6), is headed “Construc-

tion”15 and begins with, “As used in subsection (a) . . . the

term ‘discriminate’ includes . . . .” Section 12112(b)(6) thus

describes one instance of what constitutes unlawful “dis-

criminat[ion]” under the statute — “using qualification stan-

dards . . . that screen out or tend to screen out an individual

with a disability or a class of individuals with disabilities

15

While “the heading of a section cannot limit the plain meaning of the

text,” “[f]or interpretative purposes, [the heading of a section is] of use . . .

when [it] shed[s] light on some ambiguous word or phrase.” Bhd. of R.R.

Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 529 (1947).

17494 BATES v. UNITED PARCEL SERVICE

unless the standard . . . is shown to be job-related for the posi-

tion in question and is consistent with business necessity.”

Critically, § 12112(b)(6) and its parallel affirmative

defense, § 12113(a), apply where “an individual with a dis-

ability,” not a “qualified individual with a disability,” is

excluded. It is this statutory provision, and not the ones UPS

cites, that properly guide our analysis. Plaintiffs thus do not

bear the burden under § 12112(b)(6) of proving that individu-

als who cannot meet the qualification standard nevertheless

are “qualified” with regard to the essential job function the

standard addresses — here, safety.16

We took a similar approach to interpreting another provi-

sion of the ADA in Fredenburg v. Contra Costa County

Department of Health Services, which held that individuals

need not be “qualified individuals with disabilities” to bring

a challenge to a medical examination under § 12112(d)(4).

172 F.3d 1176, 1182 (9th Cir. 1999). We so held even though

Section 12112(d)(1) provides that “In general,” “[t]he prohibi-

tion against discrimination as referred to in subsection (a) of

this section shall include medical examinations and inquiries.”

Fredenburg emphasized that the particular prohibition con-

tained in Section 12112(d)(4) concerning medical examina-

tions “refer[s] to ‘employees’ . . . not ‘qualified individuals

with a disability.’ ” Id. Here, as in Fredenburg, the directly

pertinent statutory section does not refer to “qualified individ-

uals with disabilities.” Rather, that section — § 12112(b)(6)

— refers to “individuals with disabilities.” (emphasis added).

16

Moreover, the ability to drive “safely,” while critically important for

a commercial driver, is not a self-defining quality. All employers tolerate

some risk of vehicle accidents, and each evaluates that risk in its own way.

Where, as here, the employer bars employees because of their disability

from any individualized assessment of their safe driving ability, employ-

ees cannot be expected to establish through different criteria, not used by

the employer, that they are safe to some unspecified degree.

BATES v. UNITED PARCEL SERVICE 17495

We recognize that § 12112(b) states that “[a]s used in sub-

section (a), the term ‘discriminate’ includes” the employer

actions described in subsections (b)(1) through (b)(7). One

might argue, therefore, that § 12112(b)(6) elaborates only on

the single word “discriminate” used in § 12112(a), and that

§ 12112(a)’s requirement that discrimination be directed

against “qualified individuals with disabilities” still applies

even when § 12112(b)(6) — or any other subsection of

§ 12112(b) — is at issue. Examination of the other subsec-

tions of § 12112(b) and of the role of § 12112(b)(6) in the

statute as a whole leads us to conclude that this understanding

of the statute is untenable.

First, the imposition of a requirement that all ADA Title I

plaintiffs initially establish that they are “qualified individuals

with disabilities” would be utterly incoherent with regard to

one of the other subsections, § 12112(b)(4). That section pro-

hibits discrimination against a “qualified individual” known

to associate with an individual with a disability. Section

12112(b)(4) thus protects qualified individuals who do not

themselves have disabilities and thus could not possibly meet

any general “qualified individual with a disability” require-

ment.

Second, if the statute is viewed as ambiguous because of

the “qualified individual with a disability” language in

§ 12112(a), the relevant legislative history supports our con-

clusion regarding the interaction of § 12112(a) and

12112(b)(6). See Coeur d’Alene Tribe v. Hammond, 384 F.3d

674, 692 (9th Cir. 2004) (providing that we may consult legis-

lative history if a statutory provision is ambiguous), cert.

denied, 543 U.S. 1187 (2005). Especially instructive are the

committee reports, which the Supreme Court has said are “au-

thoritative source[s] for finding the Legislature’s intent.” Gar-

cia v. United States, 469 U.S. 70, 76 (1984). The committee

reports discuss the section of the ADA codified as

§ 12112(b)(6) and treat § 12112(b)(6) as a stand-alone provi-

sion, making no reference to the “qualified individual with a

17496 BATES v. UNITED PARCEL SERVICE

disability” language in § 12112(a).17 For example, the report

of the House Judiciary Committee described the section codi-

fied at § 12112(b)(6) by noting:

This section prohibits the use of qualification stan-

dards, employment tests or other selection criteria

that screen out or tend to screen out persons with dis-

abilities, unless the criteria are shown to be

jobrelated [sic] and consistent with business neces-

sity.

If an employer uses a facially neutral qualification

standard, employment test or other selection crite-

rion that has a discriminatory effect on persons with

disabilities, this practice would be discriminatory

unless the employer can demonstrate that it is

jobrelated [sic] and required by business necessity.

H. REP. NO. 101-485, pt. 3, at 42 (1990), as reprinted in 1990

U.S.C.C.A.N. 445, 465 (emphases added); see also S. REP.

NO. 101-116, at 37 (1989) (“If a person with a disability

applies for a job and meets all selection criteria except one

that he or she cannot meet because of a disability, the criteria

[sic] must concern an essential, non-marginal aspect of the

job, and be carefully tailored to measure the person’s actual

ability to do this essential function of the job.” (emphases

added)); S. REP. NO. 101-116, at 27 (“[T]his legislation pro-

17

The pertinent EEOC guidance similarly treats § 12112(b)(6)’s prohibi-

tion against inadequately justified qualification standards as an indepen-

dent statutory requirement:

[J]ob criteria that even unintentionally screen out, or tend to

screen out, an individual with a disability or a class of individuals

with disabilities because of their disability may not be used

unless the employer demonstrates that that criteria, as used by the

employer, are job-related to the position to which they are being

applied and are consistent with business necessity.

29 C.F.R. pt. 1630 app. (Section 1630.10) (emphasis added).

BATES v. UNITED PARCEL SERVICE 17497

hibits use of a blanket rule excluding people with certain dis-

abilities except in the very limited situation where in all cases

physical condition by its very nature would prevent the person

with a disability from performing the essential functions of

the job, even with reasonable accommodations.” (emphasis

added)).

Particularly significant is the report of the House Commit-

tee on Education and Labor, which states:

The Committee intends that the burden of proof

under [the sections that were codified at

§ 12112(b)(1), (5)-(6)] be construed in the same

manner in which parallel agency provisions are con-

strued under Section 504 of the Rehabilitation Act as

of June 4, 1989. See, e.g., . . . 29 C.F.R. 32.14

(Department of Labor).

H. REP. NO. 101-485, pt. 2, at 72 (1990), as reprinted in 1990

U.S.C.C.A.N. 303, 354; see also H. REP. NO. 101-485, pt. 3,

at 42 n.32. The cited regulation places the burden on employ-

ers

to ensure that to the extent job qualifications tend to

exclude handicapped individuals because of their

handicap, they are related to the performance of the

job and are consistent with business necessity and

safe performance. . . . The recipient shall have the

burden to demonstrate that it has complied with the

requirements of this paragraph.

29 C.F.R. § 32.14 (1988) (emphases added); see also Ben-

tivegna v. U.S. Dep’t of Labor, 694 F.2d 619, 621-22 (9th Cir.

1982) (applying 29 C.F.R. § 32.14). To place on Bates the

burden of demonstrating that the DOT standard excludes

some individuals who can drive “safely” cannot be squared

with this preexisting regulation.

17498 BATES v. UNITED PARCEL SERVICE

As UPS points out, many of our cases have stated in gen-

eral terms that ADA plaintiffs bear the burden of establishing

that they are “qualified individuals with disabilities.” See,

e.g., Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 892

(9th Cir. 2001); Kennedy, 90 F.3d at 1481. See also Dark v.

Curry County, 451 F.3d 1078 (9th Cir. 2006); Cleveland v.

Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (“An ADA

plaintiff bears the burden of proving that she is a ‘qualified

individual with a disability’— that is, a person ‘who, with or

without reasonable accommodation, can perform the essential

functions’ of her job.” (quoting 42 U.S.C. § 12111(8))). These

cases, however, have, for the most part, not concerned chal-

lenges to a categorical qualification standard under

§§ 12112(b)(6) and § 12113(a) and thus do not take account

of how plaintiffs’ burdens are different when those provisions

apply. See, e.g., Hutton, 273 F.3d at 889 (determining whether

a particular employee was a “direct threat” under § 12113(b));

Weyer, 198 F.3d at 1108 (determining whether a provision in

an employer’s disability policy violated the ADA); Kennedy,

90 F.3d at 1481 (considering an employment termination

claim where no qualification standard was at issue); see also

Dark, 451 F.3d at 1086 (same); Cleveland, 526 U.S. at 806

(same).18 Cripe and Morton, our two cases that have consid-

ered qualification standards, are consistent with the approach

we adopt today.

18

Other circuits have held that when the “direct threat” defense in

§ 12113(b) applies, plaintiffs have the burden to establish they can per-

form their jobs safely as part of their burden to prove they are “qualified

individuals with disabilities,” if safe job performance is an “essential func-

tion” of the position. See, e.g., McKenzie v. Benton, 388 F.3d 1342, 1355-

56 (10th Cir. 2004), cert. denied, 544 U.S. 1048 (2005); EEOC v. Amego,

Inc., 110 F.3d 135, 144 (1st Cir. 1997). In our circuit, however, the direct

threat defense is distinct from the business necessity defense and applies

only when the safety-based reason for excluding an employee is “not for

reasons related to their performance of their jobs.” Morton, 272 F.3d at

1259. Thus, the circumstances in which a plaintiff bears the burden of

establishing she can perform her job safely in those other circuits — when

performing her job “safely” is an “essential function” — never arise in our

circuit in the context of the direct threat defense.

BATES v. UNITED PARCEL SERVICE 17499

Cripe states that “[t]he ADA prohibits employment dis-

crimination only against ‘qualified individual[s]’ with disabil-

ities” and that “[i]f a disabled person cannot perform a job’s

‘essential functions’ (even with a reasonable accommoda-

tion), then the ADA’s employment protections do not apply.”

261 F.3d at 884 (alteration in original) (quoting § 12112(a)).

In Cripe, however, the dispute about whether the plaintiffs

were “qualified individuals with disabilities” concerned not

whether they could safely perform the job functions in ques-

tion — it was clear that they could not — but whether the job

functions they could not perform were essential to the desired

positions.19 See id. at 885. There was no reason in Cripe to

consider the burdens of proof with regard to whether or not

a prescribed qualification standard the employer used to

assess the ability to perform a job safely discriminated on the

basis of disability. Cripe, therefore, did not consider the ques-

tion we address today.

Morton followed Cripe and, in large part, forecast the reso-

lution of the burden of proof question we adopt today. In

Morton, UPS did not contend that Morton had to show that

she was a “qualified individual with a disability” in the sense

that she could drive “safely.” Instead, UPS made its argument

that deaf drivers cannot drive safely only as part of its “busi-

ness necessity” defense, and Morton proceeded to address the

safety issue only in that context. 272 F.3d at 1257. In contrast,

Morton treated a separate qualification-standard issue —

whether an essential function of any driving position was

being able to drive any UPS vehicle — in the same manner

as Cripe had handled the parallel question. See id. at 1254. As

19

UPS makes much of Cripe’s statement that “we” would “first consider

whether the plaintiffs are . . . ‘qualified individuals,’ ” and “we” would

“then consider the City’s argument that . . . the policies are ‘job-related’

and ‘consistent with business necessity.’ ” 261 F.3d at 886 (emphasis

added). That statement indicated only the order in which in the opinion

considered the issues. It did not indicate that plaintiffs always bear the

burden of proof on the first issue, even when an asserted qualification is

challenged as discriminatory under § 12112(b)(6).

17500 BATES v. UNITED PARCEL SERVICE

Morton came after Cripe, the distinction in Morton’s

approach to two different “qualified individual with disabili-

ty” issues confirms our understanding that Cripe is fully con-

sistent with today’s holding.

Indeed, Morton necessarily assumed the result we reach

today. Morton held that when a safety-related qualification

standard that excludes a class of individuals with disabilities

is at issue, the employer satisfies its burden under the business

necessity defense if it can show that either (1) “substantially

all [excluded individuals with disabilities] present a higher

risk” than individuals not excluded, or (2) “there are no prac-

tical criteria for determining which [excluded individuals with

disabilities] present a heightened risk and which do not.” Id.

at 1263. Were we to hold that Bates bears the burden of estab-

lishing that at least some deaf individuals are capable of driv-

ing safely, the Morton affirmative defense would be rendered

almost entirely pointless. It necessarily follows from a show-

ing that the policy excludes some individuals capable of per-

forming the job safely that it is not true that “substantially all”

individuals excluded by the qualification standard present a

higher-than-normal risk.20 And if a plaintiff illustrates that a

qualification standard excludes individuals capable of safely

performing the essential functions of a job, she has demon-

strated that there are “criteria for determining which

[excluded individuals with disabilities] present a heightened

risk and which do not.” Id.

3. Summary

[6] We therefore hold that when a plaintiff challenges a cat-

egorical “qualification standard,” the plaintiff does not have

the burden of establishing that that qualification standard

excludes “qualified individuals with disabilities.” Rather, to

establish statutory standing, the plaintiff has the burden of

20

We read the word “substantially” to express the notion that the proof

that all excluded individuals are unsafe need not be air-tight.

BATES v. UNITED PARCEL SERVICE 17501

establishing that she meets other qualifications, unrelated to

the challenged standard. In addition, the plaintiff has the bur-

den to prove that the challenged qualification standard

“screen[s] out or tend[s] to screen out an individual with a

disability or a class of individuals with disabilities.”

§ 12112(b)(6). The burden then shifts to the employer to

establish the business necessity defense.21

Two observations about this holding are in order. First, by

holding that plaintiffs challenging a qualification standard do

not have the burden of establishing that the standard excludes

“qualified individuals with disabilities,” we are in no way

suggesting that the ADA requires employers to hire unquali-

fied individuals with disabilities. To the contrary, the business

necessity defense ensures that employers will not be required

to hire unqualified individuals, but channels the qualification

inquiry in part into an affirmative defense.

Second, the burden-shifting framework we apply today per-

21

We note that our understanding of the parties’ burdens of proof in a

case such as this one is consistent with that of the most similar case we

have found, Monette. In Monette, the Sixth Circuit held:

[I]f the plaintiff has direct evidence that the employer relied on

his or her disability in making an adverse employment decision,

or if the employer admits reliance on the handicap:

1) The plaintiff bears the burden of establishing that he or

she is “disabled.”

2) The plaintiff bears the burden of establishing that he or

she is “otherwise qualified” for the position despite his or her

disability: a) without accommodation from the employer; b)

with an alleged “essential” job requirement eliminated; or c)

with a proposed reasonable accommodation.

3) The employer will bear the burden of proving that a chal-

lenged job criterion is essential, and therefore a business

necessity, or that a proposed accommodation will impose an

undue hardship upon the employer.

90 F.3d at 1186.

17502 BATES v. UNITED PARCEL SERVICE

tains to cases testing whether an employer may use a particu-

lar qualification standard, not to cases testing whether an

employer must hire a particular individual. If a court finds

against an employer under the framework outlined in this

opinion, it follows only that the employer may not use the

qualification standard, not that a person challenging the stan-

dard must be hired. The usual statutory standards apply when

an employer does not apply a categorical exclusion that pre-

cludes disabled persons from ever obtaining an individualized

determination but instead makes an individualized determina-

tion.

IV. Business Necessity Defense

UPS contends that even if the district court was correct in

its allocation of the evidentiary burdens and in its finding that

Oloyede met the threshold qualifications, UPS is entitled to

judgment because it satisfied its burden under the business

necessity defense. Reviewing the district court’s extensive

findings of fact for clear error and for consistency with the

legal requisites of the business necessity defense, we do not

agree.

To repeat: Under Morton’s two-pronged test for determin-

ing whether a defendant satisfies its burden on the business

necessity defense when a disability-focused safety criterion is

at issue, a defendant carries its burden if it establishes that

either (1) “substantially all [deaf drivers] present a higher risk

of accidents than non-deaf drivers,” or (2) “there are no prac-

tical criteria for determining which deaf drivers present a

heightened risk and which do not.” 272 F.3d at 1263. We

examine each prong in turn.

A. First Prong

The parties introduced three kinds of evidence pertaining to

the extent to which deaf drivers pose an increased safety risk

as compared to hearing drivers: crash risk studies, a human-

BATES v. UNITED PARCEL SERVICE 17503

factors study, and expert testimony regarding “channel capac-

ity.” The district court found that UPS did not establish that

“substantially all [deaf drivers] present a higher risk of acci-

dents than non-deaf drivers.” This finding was not clearly

erroneous.

1. Summary of District Court Findings

The district court first considered the crash risk studies and

concluded that they both suffered from methodological flaws

and yielded conflicting results about the extent to which deaf

drivers were more dangerous than hearing drivers. The district

court further noted that the one study that both parties agreed

was the least methodologically flawed found that deaf males

had 1.8 times the number of accidents as hearing males, but

that there was no significant difference in accident rates

between deaf and hearing females. Citing Morton, which had

considered the same study, the district court concluded that

“the gender anomaly serves to “negate[ ] any conclusion that

all or substantially all deaf drivers present a heightened risk

of accidents.” (alteration in original) (quoting Morton, 272

F.3d at 1264).

In addition, the district court noted that because the studies

comparing “deaf” and “hearing” drivers used varying criteria

to classify drivers as “deaf,” none of which corresponded to

the DOT standard, the studies did not capture the risk differ-

ential between individuals who fail the DOT standard and

individuals who pass the DOT standard. Finally, the district

court observed that the risk studies were dated and that tech-

nological advances and advances in driver training in the

intervening decades cast doubt on their results.

The district court next considered the “human factors

study” relied on by UPS. That study was based both on inter-

views with “subject matter experts” and on questionnaires

completed by eighty hearing truck drivers. The court found

that the study’s conclusion that “hearing is both important and

17504 BATES v. UNITED PARCEL SERVICE

necessary for the safe operation of commercial vehicles” was

not persuasive, because the study’s conclusions were based on

the subjective beliefs of hearing drivers. Neither the subjec-

tive beliefs of deaf drivers nor the ways in which deaf drivers

compensate for their hearing loss was considered. In addition,

the district court found this study not relevant to the question

at hand, as it merely demonstrated the existence of “hearing

critical” tasks but did not establish a link between those tasks

and safety.

Finally, the court considered evidence about “channel

capacity” theory, which holds that there are limits to the

amount of information an individual can process through any

given sense. The court was not persuaded by the testimony of

UPS’s expert that he had “very strong doubts” that providing

deaf drivers with additional visual cues, such as visual warn-

ings of sirens, could be effective in compensating for hearing

loss. Having “very strong doubts” did not satisfy UPS’s bur-

den, said the district court, nor were the expert’s doubts

grounded in empirical evidence or any personal experience

with deaf drivers. To the contrary, the court noted, the expert

was not aware of any studies investigating whether technolog-

ical devices might allow deaf drivers to compensate effec-

tively for their hearing impairments, nor was he aware of any

studies investigating whether deaf drivers are able to compen-

sate effectively without the aid of technological devices.

After surveying this evidence, the district court stated that

“all other things being equal, a driver with perfect hearing

would likely pose less of a safety risk than a driver with

impaired hearing” and that “there are, in theory at least, situa-

tions where a hearing driver would avoid an accident while a

deaf driver, with all of the same training and skills except for

hearing, would not.” The district court noted, however, that

“[t]his does not . . . answer the question of whether UPS’s

application of the DOT hearing standard to non-DOT-

regulated vehicles is consistent with business necessity,” rea-

soning:

BATES v. UNITED PARCEL SERVICE 17505

UPS had failed to demonstrate that those situations

where hearing alone makes the difference between

an accident and avoiding an accident would ever be

confronted by a UPS package-car driver. While UPS

offered anecdotal testimony involving situations

where a driver avoided an accident because he or she

heard a warning sound, the company, as discussed

above, failed to show that those accidents would not

also have been avoided by a deaf driver who has

compensated for his or her loss of hearing by, for

example, adapting modified driving techniques or

using compensatory devices such as backing cam-

eras or additional mirrors.

In addition, the district court observed that even if the evi-

dence established that

a hearing driver would pose less of a safety risk than

a driver with the exact same characteristics and train-

ing but with impaired hearing, that would not estab-

lish that all or substantially all deaf drivers pose a

heightened safety risk compared with hearing driv-

ers. This one-to-one comparison is of little use in

answering the question at hand because it does noth-

ing to establish whether there is a significant portion

of deaf drivers who are able to drive as safely as or

more safely than the typical hearing driver.

(second emphasis added).

Along the same lines, the district court noted that to satisfy

UPS’s burden, statistics about accident rates of deaf drivers

alone would be insufficient. Rather, “UPS must show that

deaf drivers pose a greater safety risk than that already

accepted by the company.” The court noted that the evidence

revealed that UPS tolerates some level of risk among its driv-

ers, citing accident-rate statistics and UPS policies that permit

drivers who have had accidents to continue as UPS drivers.

17506 BATES v. UNITED PARCEL SERVICE

The court observed that UPS had not demonstrated that deaf

drivers posed a greater risk of accidents than that tolerated for

hearing drivers.

The district court next rejected the proposition that the

mere existence of the DOT standard supports UPS’s assertion

that hearing is necessary to drive non-DOT-regulated vehicles

safely, observing that the Ninth Circuit had squarely rejected

this argument in Morton. See Morton, 272 F.3d at 1263-64.

Moreover, the district court noted that UPS’s argument that

the same physical standards should apply to non-DOT-

regulated vehicles at issue because such vehicles pose the

same risk of danger as DOT-regulated vehicles was not sup-

ported by the evidence:

[T]he DOT itself previously considered and rejected

this argument, finding that “[m]ost vehicles having

a GVWR of 10,000 pounds or less have operating

characteristics similar to a large automobile and gen-

erally pose no greater safety risk than other vehicles

of similar or lesser weight when used on the high-

way.”

(quoting 53 Fed. Reg. 18,042 (1988)) (second alteration in

original).

Finally, the district court observed that UPS had not shown

that it was impossible to conduct a valid study comparing the

relative risks posed by deaf drivers, pointing out that there is

no evidence in the record of an insufficient number of deaf

commercial drivers in the United States to conduct such a

study and noting that even if there were, UPS could conduct

a study on deaf commercial drivers in other countries, on deaf

passenger-car drivers, or by using computer simulators.

After this extensive analysis of the evidence, the district

court concluded that “the evidence is inconclusive as to

whether deaf drivers pose an increased risk compared with

BATES v. UNITED PARCEL SERVICE 17507

hearing drivers.” It went on to state that “[b]ecause UPS bears

the burden of proving business necessity, the lack of conclu-

sive evidence requires the Court to rule against the company;

UPS simply has not proven that all or substantially all deaf

drivers pose an increased safety risk.”

2. Analysis

[7] The district court did not clearly err in finding that UPS

failed to show that deaf drivers pose a greater risk than other

drivers hired by the company. The district court carefully

evaluated the underlying record before finding that “UPS has

failed to demonstrate that those situations where hearing alone

makes the difference between an accident and avoiding the

accident would ever be confronted by a UPS package car

driver.” In so doing, the court determined that: (1) the crash-

risk studies UPS presented were methodologically flawed and

generally unhelpful; (2) the human factors study was not per-

suasive because it relied on the subjective impressions of

hearing drivers; and (3) the expert testimony relating to chan-

nel capacity was both indistinct and not well-grounded.

Because none of these predicate findings were clearly errone-

ous, neither was the district court’s ultimate finding of fact

that UPS did not establish that deaf drivers are less safe than

hearing drivers.

[8] The district court’s findings are also fully consistent

with the business necessity defense. That defense requires that

the defendant establish one of two propositions: (1) that sub-

stantially all deaf drivers present an unacceptable risk of dan-

ger — i.e., substantially all individual deaf drivers present a

risk greater than the risk per driver already accepted by UPS,

or (2) that there is no practical way to determine which deaf

drivers present an unacceptable risk of danger. Hence, evi-

dence that a hearing driver is generally safer than a deaf

driver with similar skills and characteristics — i.e., evidence

of the sort that UPS presented to the district court — still does

not address the question of whether there are some deaf driv-

17508 BATES v. UNITED PARCEL SERVICE

ers who are as safe or safer than some or all of the hearing

drivers that UPS employs.

It is this latter comparison that is key. Otherwise, UPS

would be allowed to exclude — contrary to the ADA — deaf

drivers who are no more dangerous than some hearing drivers

UPS employs and who can be identified by UPS as presenting

an acceptable risk of danger. The concept of risk, in other

words, is an individual, not an aggregate, one, albeit one cal-

culated by averaging out overall risk: How likely is it that the

individual driver will get into an accident? If there is, for

example, a one percent chance that hearing drivers who have

had two prior accidents will get into an accident, yet UPS

hires them, and a one percent chance that deaf drivers gener-

ally will get into an accident, then excluding deaf drivers gen-

erally is excluding a subgroup no less safe than another

subgroup not excluded, and is therefore discriminatory. Cf.

UAW v. Johnson Controls, Inc., 499 U.S. 187, 220 (1991)

(White, J., concurring in part and concurring in the judgment)

(stating that to determine whether a company may justify a

sex-differentiated policy on the ground that the policy’s pur-

pose is risk avoidance, courts must “consider the level of risk

avoidance that was part of [the employer’s] ‘normal opera-

tion’ ”). The district court’s holding thus correctly interpreted

Morton and its instruction that “the level of risk that UPS

accepts for drivers generally and for ascertainable subgroups

of drivers is pertinent” to the business necessity inquiry. Mor-

ton, 272 F.3d at 1265.

That is not to say that there might not be some subgroup of

deaf drivers — deaf drivers with two previous accidents, per-

haps — who are more risky than any of the hearing drivers

UPS hires. And UPS certainly could decrease its overall level

of risk, if it wishes, by toughening its per-driver safety stan-

dards generally. UPS, however, cannot decrease its overall

risk by excluding all deaf drivers because of the incremental

aggregate additional risk they assertedly pose, without show-

ing any individualized risk that is beyond the risk already

BATES v. UNITED PARCEL SERVICE 17509

accepted for some hearing drivers (or, as we develop next,

showing that it is impossible to isolate such an increased indi-

vidualized risk). To do so would be the essence of the dis-

crimination the ADA seeks to eliminate.

[9] In sum, the district court’s conclusion that the evidence

was inconclusive on the question of whether “substantially all

[deaf drivers] present a higher risk of accidents than non-deaf

drivers,” Morton, 272 F.3d at 1263, was not clearly erroneous.

B. Second Prong

1. Summary of District Court Findings

To satisfy the second prong of the business necessity test,

UPS had to demonstrate that “there are no practical criteria

for determining which deaf drivers present a heightened risk

and which do not.” Id. UPS could establish that no such prac-

tical criteria exist by demonstrating, inter alia, that “empirical

evidence in this area is so difficult to come by that it is impos-

sible to identify specific risk factors and then use those factors

to sort disabled applicants into risk categories.” Id. at 1265.

The district court, in its extensive findings of fact regarding

prong two, determined that UPS failed to prove that it could

not modify its existing training and assessment program to

determine which deaf drivers are safe. Nor, held the district

court, did UPS demonstrate the inefficacy or impracticality of

several other “obvious” criteria for evaluating the safety of

drivers. Such criteria, the district court noted, might include

(1) “whether the applicant has had the benefit of rehabilitative

or specialized driver training to compensate for the impair-

ment”; (2) “whether the applicant has a sustained driving

record (with the impairment), indicating he or she has suc-

cessfully overcome the impairment”; (3) “whether the appli-

cant has previously successfully driven commercial delivery

vehicles . . . with the impairment”; and (4) whether the appli-

cant has passed a “supplemental driving test specifically

17510 BATES v. UNITED PARCEL SERVICE

designed to simulate the scenarios of concern.” (internal quo-

tation marks omitted) (quoting EEOC v. United Parcel Ser-

vices, Inc., 149 F. Supp. 2d 1115, 1170 (N.D. Cal. 2000),

rev’d on other grounds, 306 F.3d 794 (9th Cir. 2002)). The

court additionally found that “UPS has never tried to train a

deaf driver, nor has it ever investigated ways in which it

might do so.”

In addition, the court found the testimony of Dr. Songer,

one of Bates’s expert witnesses, not dispositive, UPS’s con-

tention to the contrary notwithstanding. Dr. Songer testified

that:

There is no evidence available at this point that can

point to characteristics amongst individuals who are

deaf or hearing impaired that say that this one may

be more likely to crash because of the hearing

impairment than another one. There’s other things

you could do that are unrelated to hearing that may

be potentially helpful. But with respect to hearing,

there’s nothing we know at this point in time.

UPS argued to the district court that Dr. Songer’s testimony

proved the ultimate issue under prong two — whether it was

possible to distinguish among deaf individuals to determine

which individuals posed a heightened risk of accident. The

court rejected UPS’s arguments, because, read in context, Dr.

Songer’s testimony suggested only

that it would be impossible to say, for example,

whether an individual who is profoundly deaf would

be more or less likely to crash because of that

impairment than someone who has a lesser degree of

hearing impairment, or whether an individual who

was born with a hearing impairment would be more

or less likely to crash because of that impairment

than someone who acquired a hearing impairment

later in life. The Court does not find this testimony

BATES v. UNITED PARCEL SERVICE 17511

to be dispositive of the ultimate legal issue because

it fails to address whether UPS’s driver assessment

and training programs or other similar tools could be

effectively applied to screen deaf drivers.

2. Analysis

The district court’s findings on the second prong of the

business necessity test, like its findings on the first, are not

clearly erroneous and are free of legal error.

First, the district court’s interpretation of Dr. Songer’s

remarks, upon which UPS heavily relies in its appeal, was not

clearly erroneous: Dr. Songer stated that “[t]here is no evi-

dence available at this point that can point to characteristics

amongst individuals who are deaf or hearing impaired that say

that this one may be more likely to crash because of the hear-

ing impairment” and immediately thereafter noted that

“[t]here’s [sic] other things you could do that are unrelated to

hearing that may be potentially helpful.” (emphasis added).22

So Dr. Songer’s testimony establishes only that certain kinds

of evidence are not available, not that there exist no criteria

for determining which deaf individuals present an unduly high

risk. Similarly, while Dr. Songer testified that it would not be

possible to do a general study of whether deaf drivers are safe

to drive commercial vehicles without modification of DOT

regulations precluding deaf individuals from driving many

such vehicles, that testimony does not address the pertinent

22

UPS’s expert, Dr. Staplin, testified that there are no proven mecha-

nisms for determining which deaf individuals might pose a heightened

risk. That testimony does not, however, provide support for this proposi-

tion. Dr. Staplin did not make any statements that could be construed as

supporting the proposition that there is no other way to screen drivers to

determine who will be safe. He also “agree[d] that DMV screening, that

is, the examination of violation and crash records, has importance in iden-

tifying individuals who may be at increased risk of a crash,” thus indicat-

ing that there are ways that could help determine which deaf drivers are

more likely than other drivers to crash.

17512 BATES v. UNITED PARCEL SERVICE

question for this case. DOT regulations preclude studies of

deaf drivers of DOT-regulated vehicles, not studies of deaf

drivers of vehicles not regulated by the DOT, the vehicles at

issue in the present case.

[10] Second, under Morton, it is the employer who must

establish (1) that there exist no practical criteria for determin-

ing which deaf drivers are safe, or (2) that there exists no

empirical evidence from which to derive criteria for determin-

ing which deaf drivers are safe. See Morton, 272 F.3d at 1265

(“If UPS were able to show that empirical evidence in this

area is so difficult to come by that it is impossible to identify

specific risk factors and then use those factors to sort disabled

applicants into risk categories, then its application of an over-

inclusive qualification standard might meet the business

necessity test.”). Here, several possible criteria for distin-

guishing among deaf drivers and several sources of empirical

evidence from which to derive such criteria are apparent. UPS

had the burden at least to introduce evidence tending to show

that no such criteria are practical or effective or no such evi-

dence is obtainable. Because UPS entirely failed to do so, pre-

senting essentially no evidence on this critical question, it did

not satisfy its burden under prong two of the business neces-

sity test.

For example, UPS uses driving records to aid in predicting

whether individuals will be safe drivers, excluding from con-

sideration for package-car driving positions individuals who,

inter alia, have more than a specified number of moving vio-

lations or accidents in a particular period of time. Absent

some persuasive explanation as to why similar criteria could

not be used to separate safe from unsafe deaf drivers, the dis-

trict court was entitled to conclude that UPS had not met its

burden of demonstrating that there are no practical criteria avail-

able.23 Similarly, UPS gives driving tests and extensive train-

23

The district court rejected UPS’s contention that deaf drivers who

have violated the law receive citations less often than hearing drivers and

that driving records of deaf drivers are therefore unreliable. On appeal,

UPS does not challenge that conclusion.

BATES v. UNITED PARCEL SERVICE 17513

ing to prospective drivers, presumably because doing so helps

in assessing which applicants will drive safely. Yet, the record

does not address the reasons similar tests and training could

not determine which deaf drivers, if any, present no greater

risk of accidents than the risk UPS accepts for other drivers.

Of particular significance in these regards is that deaf drivers

are licensed to drive passenger cars in every state and do,

including vehicles as large as the smaller UPS package cars.

There is therefore no legal impediment to assessing and train-

ing deaf drivers, and both driving and accident-rate records

for deaf drivers seeking UPS driving jobs are obtainable.

[11] UPS’s challenge to the district court’s findings under

prong two therefore fails. And, because UPS did not satisfy

its burden on either prong, it failed to establish that its use of

the hearing standard is job-related and consistent with busi-

ness necessity. UPS therefore violated the ADA.

*****

We underscore that our holding turns entirely on UPS’s

failure to adduce any persuasive proof suggesting that its stan-

dard is justified as job-related and consistent with business

necessity. UPS contends that in the face of uncertainty regard-

ing whether deaf drivers are more dangerous than hearing

drivers, it must be given the benefit of the doubt. The second

prong of the business necessity defense in Morton does give

employers the benefit of the doubt in cases of uncertainty, but

only when the employers introduce persuasive evidence sup-

porting the conclusion that the answers to the questions at

hand truly are uncertain. Here, UPS made no such showing.

V. Injunction

UPS next challenges the terms of the injunction issued by

the district court. Under the ADA, courts have the power to

enjoin the respondent from engaging in such unlaw-

ful employment practice, and order such affirmative

17514 BATES v. UNITED PARCEL SERVICE

action as may be appropriate, which may include,

but is not limited to, reinstatement or hiring of

employees, with or without back pay (payable by the

employer, employment agency, or labor organiza-

tion, as the case may be, responsible for the unlawful

employment practice), or any other equitable relief

as the court deems appropriate.

42 U.S.C. § 2000e-5(g)(1) (incorporated into the ADA by 42

U.S.C. § 12117). We review the terms of an injunction for

abuse of discretion. Walters v. Reno, 145 F.3d 1032, 1049

(9th Cir. 1998); see also Am.-Arab Anti-Discrimination

Comm. v. Reno, 70 F.3d 1045, 1066 (9th Cir. 1995).

Here, the injunction contains two elements. First, the order

states that “UPS shall cease using the DOT hearing standard

to screen applicants for package-car driving positions” but

noted that “nothing in this order requires UPS to allow appli-

cants who cannot pass the DOT hearing standard to drive

vehicles weighing more than 10,000 pounds.” Second, the

order states that if individuals fail the DOT hearing test but

meet all other threshold requirements, “UPS shall perform an

individualized assessment” of the ability of those individuals,

including engaging in an “interactive process designed to

identify specific accommodations that would enable the deaf

individual to obtain driving work” in non-DOT regulated

package cars.24

UPS challenges two aspects of the injunction. First, UPS

contends that “the DOT standard is the only proven means of

24

The second element of the injunction applies only to those who fail

the DOT test. Thus, UPS may continue to use the DOT standard to deter-

mine which drivers’ hearing is so evidently adequate as to need no further

assessment, but not to exclude any applicant for a position driving vehicles

with GVWRs and gross vehicle weights less than 10,001 pounds. We

therefore understand the prohibition on “us[ing] the DOT hearing standard

to screen applicants” as precluding not all use of the test, but use of the

test as a basis for screening applicants out — that is, for excluding them.

BATES v. UNITED PARCEL SERVICE 17515

screening those deaf drivers who present a genuine risk to

safety.” This argument is simply a reiteration of UPS’s argu-

ment on the second prong of the Morton test — that there is

no way to assess deaf drivers for safety other than the DOT

standard. We have upheld as not clearly erroneous and consis-

tent with the applicable legal standards the district court’s

finding of fact to the contrary. The issuance of injunctive

relief premised on a valid factfinding is valid as well.

[12] Second, UPS contends that the injunction requires

UPS to use “a new ‘specially designed’ test to determine deaf

driver safety on an individual basis,” and contends that this

test was “invented by the court” and “has no basis in evi-

dence.” The injunction does not, however, require UPS to use

any particular test for screening deaf drivers. It only prohibits

it from categorically excluding deaf drivers from consider-

ation and requires instead, some form of individualized

assessment. Once the district court concluded that UPS’s use

of the hearing standard violated the ADA, the court was fully

empowered to enjoin that use. See 42 U.S.C. § 2000e-5(g)(1)

(incorporated into the ADA by 42 U.S.C. § 12117) (giving

courts the power to, inter alia, “enjoin the respondent from

engaging in such unlawful employment practice”).

[13] Given the district court’s findings on the merits, the

injunction issued intruded into UPS’s business practices and

discretion to the least degree possible under the ADA. Aside

from limiting (but not banning) the use of the qualification

standard found invalid and reiterating the statutory accommo-

dation requirement, the injunction leaves it to the company to

develop new assessment and training criteria for deaf drivers.

Thus, while UPS argues that the district court ignored the

Supreme Court’s admonition in Furnco Construction Corp. v.

Waters that “[c]ourts are generally less competent than

employers to restructure business practices” 438 U.S. 567,

578 (1978), the district court in fact carefully heeded that

admonition. The court merely proscribed the use of an illegal

standard, but did not prescribe the use of a particular method

17516 BATES v. UNITED PARCEL SERVICE

for hiring package-car drivers. We hold that the district

court’s injunction was not an abuse of discretion.

VI. Unruh Act

Finally, UPS argues that the district court erred in finding

in favor of Bates on the Unruh Act claim.25

The Unruh Act’s central substantive statutory provision

states that

[a]ll persons within the jurisdiction of this state are

free and equal, and no matter what their sex, race,

color, religion, ancestry, national origin, disability,

medical condition, marital status, or sexual orienta-

tion are entitled to the full and equal accommoda-

tions, advantages, facilities, privileges, or services in

all business establishments of every kind whatso-

ever.

25

UPS also appeals the district court’s holding that because UPS vio-

lated the ADA, it a fortiori violated the FEHA. After the district court

issued its decision, however, this court observed in EEOC v. United Par-

cel Service, Inc. that FEHA’s “safety-of-others defense has no direct ana-

logue in the ADA” and is broader than the ADA’s direct threat defense,

its closest analog. See 424 F.3d 1060, 1074 n.12. (9th Cir. 2005). UPS

now contends that it is not liable under FEHA, arguing, inter alia, that it

has satisfied FEHA’s safety-of-others defense.

In light of the clarification of the applicable legal standard, we do not

review the district court’s finding, applying a different legal standard, that

UPS violated FEHA. Our holding that UPS violated the ADA is sufficient

grounds for affirming the injunction. The district court will have ample

opportunity to make findings of fact pertinent to the EEOC v. United Par-

cel Service, Inc. interpretation of the FEHA safety-of-others defense

should the distinction between that standard and the ADA business neces-

sity standard prove pertinent at the damages phase of this case. See 424

F.3d at 1075 (“FEHA’s safety-of-others defense requires an individualized

showing that safety would be compromised by each [employee’s] perfor-

mance of driving duties,” although “[c]ategorical evidence can be relevant

. . . .”).

BATES v. UNITED PARCEL SERVICE 17517

CAL. CIV. CODE § 51(b). Section 51(f) of the Unruh Act states

that “[a] violation of the right of any individual under the

Americans with Disabilities Act of 1990 shall also constitute

a violation of this section.” Id. § 51(f) (citation omitted).

Bates contends that because UPS violated the ADA, it follows

from section 51(f) that UPS also violated the Unruh Act.

UPS’s contrary argument is that the Unruh Act does not cover

employment discrimination claims, section 51(f) notwith-

standing, so UPS did not violate the Unruh Act.

[14] We recently addressed this precise legal question. See

Bass v. County of Butte, 458 F.3d 978 (9th Cir. 2006). Bass

held that a violation of Title I of the ADA, 42 U.S.C.

§§ 12111-12117, which covers employment discrimination, is

not automatically a violation of the Unruh Act.26 We therefore

reverse the district court’s finding that UPS is liable under the

California statute.

VII. Conclusion

We hold that when plaintiffs challenge an employer’s use

of a safety-based qualification standard, they need not, inde-

pendently of that challenge, establish generally that they can

perform the essential function of doing the job safely. They

are, however, required to show they are “qualified” in the

sense that they satisfy prerequisites for the position, including

26

A California Court of Appeals had held similarly in Williams v.

Genentech, Inc., 42 Cal. Rptr. 3d 585 (Ct. App. 2006). On August 23,

2006, the California Supreme Court granted review of Williams. If that

court reaches a different conclusion than that reached by this court in

Bass, our holding here will not be the law of the case. See Dimidowich v.

Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986) (writing that a federal

appellate court “will follow a state supreme court’s interpretation of its

own statute in the absence of extraordinary circumstances”); Ingle v. Cir-

cuit City, 408 F.3d 592, 594 (9th Cir. 2005) (holding that a district court

abuses its discretion in applying the law of the case doctrine if “an inter-

vening change in the law [has] occurred”). Instead, the California Supreme

Court decision will be binding on any later proceedings as they relate to

Bates’ Unruh Act claim.

17518 BATES v. UNITED PARCEL SERVICE

safety-related prerequisites, not connected to the challenged

criterion. Once plaintiffs have so demonstrated, and have also

shown that the qualification standard “screen[s] out or tend[s]

to screen out an individual with a disability or a class of indi-

viduals with disabilities,” § 12112(b)(6), the burden shifts to

the defendant to establish that the challenged qualification

standard is job-related and consistent with business necessity.

We affirm the district court’s factual finding that UPS

failed to carry its burden and its legal conclusion that UPS

therefore violated the ADA. We also affirm the district court’s

injunction and its order denying UPS’s motion to decertify the

class. Finally, we reverse the district court’s finding of liabil-

ity under the Unruh Act, which we hold does not cover

employment discrimination claims.

AFFIRMED in part, REVERSED in part, and

REMANDED.