Bates v. UPS

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-TEH

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, Senior District Judge, Presiding

Argued and Submitted

June 20, 2007—San Francisco, California

Filed December 28, 2007

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

16883

BATES v. UNITED PARCEL SERVICE 16889

COUNSEL

Mark A. Perry (argued), Gibson, Dunn & Crutcher, LLP,

Washington, D.C., Christopher J. Martin, Gibson Dunn &

Crutcher, LLP, Palo Alto, California, Rachel S. Brass and

Amanda M. Rose, Gibson, Dunn & Crutcher, LLP, San Fran-

cisco, California, for the defendant-appellant.

Laurence W. Paradis (argued) and Kevin M. Knestrick, Dis-

ability Rights Advocates, Berkeley, California, Todd M.

Schneider and Guy B. Wallace, Schneider & Wallace, San

Francisco, California, 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, California, for amici

curiae American Association of People with Disabilities et al.

Rae T. Vann, McGuiness Norris & Williams, LLP, Washing-

ton, D.C., for amicus curiae Equal Employment Advisory

Council.

Robin S. Conrad and Shane Brennan, National Chamber Liti-

gation Center, Inc., for amicus curiae Chamber of Commerce

of the United States of America.

Robert Digges, Jr., American Trucking Associations, Inc.,

Alexandria, Virginia, J. Brett Busby and Jeffrey L. Oldham,

Mayer, Brown, Rowe & Maw LLP, Houston, Texas, for

amicus curiae American Trucking Associations, Inc.

16890 BATES v. UNITED PARCEL SERVICE

OPINION

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 (1999). Bates contends, however, that UPS may not law-

fully 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

1

The original lead plaintiff, Eric Bates, passed the DOT physical exami-

nation, including the hearing standard, after the nationwide class was certi-

fied. For ease of reference, we refer to the class as “Bates.”

BATES v. UNITED PARCEL SERVICE 16891

Teamsters v. United States, 431 U.S. 324 (1977). In determin-

ing 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 tradi-

tional 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 dis-

criminates against otherwise “qualified” persons with disabili-

ties, 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 discrimina-

tory 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 consid-

ered 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 deci-

sion. 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

16892 BATES v. UNITED PARCEL SERVICE

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 high-

est 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 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

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 16893

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 vehi-

cle 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 compari-

son, automobiles, which include passenger cars, sport utility

vehicles, light trucks and minivans, 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 [cer-

3

David A. Buckingham, U.S. Geo. Survey, Steel Stocks in Use in Auto-

mobiles in the United States 1 (2006).

4

The district court also certified a subclass of California plaintiffs on the

state law claims.

16894 BATES v. UNITED PARCEL SERVICE

tifying 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 law-

ful 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 there is an adequate class representative, or pro-

posed substitute, who is otherwise qualified for a UPS

package-car driver position or has been injured by UPS’s use

of the qualification standard.

Following phase one of the trial, the district court issued

detailed findings of fact and conclusions of law. The district

court found that Bates satisfied his prima facie case based

upon a combination of two factors: first, UPS’s policy oper-

ated as a blanket exclusion of deaf individuals, and second, at

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

class member, Elias Habib, were “qualified” individuals with

a disability with standing to sue under the ADA by virtue of

having satisfied all prerequisites for the driving position other

than the DOT hearing requirement. The court further con-

cluded that Bates did not have the burden to establish at that

stage that any plaintiffs were “qualified” in the sense that they

were capable of driving safely. Accordingly, the district court

denied UPS’s motions for judgment under Rule 52(c) and to

decertify the class.

Critical to its ruling, the district court next found that, under

Morton, UPS failed to satisfy its burden under the business

BATES v. UNITED PARCEL SERVICE 16895

necessity defense. Thus, the court reasoned, UPS’s categorical

exclusion of individuals who do not meet the DOT hearing

requirement violates the ADA (and, accordingly, the FEHA

and the Unruh Act as well). The district court entered an

injunction requiring UPS to “cease using the DOT hearing

standard to screen applicants for package-car driver positions”

with respect to vehicles weighing 10,000 pounds or less and

to “perform an individualized assessment” of applicants that

meet the threshold qualifications, other than the hearing stan-

dard. Upon UPS’s motion, the district court stayed all further

proceedings pending UPS’s interlocutory appeal.

ANALYSIS

I. JURISDICTION

UPS’s interlocutory appeal of the order granting a perma-

nent injunction falls squarely within the scope of 28 U.S.C.

§ 1292(a)(1), which grants us jurisdiction over

“[i]nterlocutory orders of the district courts . . . granting . . .

injunctions.” Our review of the permanent injunction properly

includes review of the merits of the district court’s determina-

tion of liability. Smith v. Vulcan Iron Works, 165 U.S. 518,

525 (1897); e.g., Long v. Bureau of Economic Analysis, 646

F.2d 1310, 1317-18 (9th Cir. 1981) (per curiam), vacated on

other grounds, 454 U.S. 934 (1981). Review is particularly

appropriate in cases like this one, in which the appeal is taken

from a permanent, rather than preliminary, injunction, and

“[t]he district court has completed its consideration of the lia-

bility issue, retaining jurisdiction only for an accounting of

damages.” Marathon Oil Co. v. United States, 807 F.2d 759,

764 (9th Cir. 1986).

We likewise have jurisdiction to consider the district

court’s denial of UPS’s Rule 52(c) motion for judgment on

partial findings or, in the alternative, for class decertification

under Rule 23(c)(1) and (d), because the district court’s deter-

minations as to both motions are inextricably intertwined with

16896 BATES v. UNITED PARCEL SERVICE

the permanent injunction. Paige v. California, 102 F.3d 1035,

1039-40 (9th Cir. 1996) (reviewing class certification order

under § 1292(a)(1) because order was “inextricably inter-

twined” with permanent injunction granting class-wide relief);

Marathon Oil, 807 F.2d at 764-65 (reviewing summary judg-

ment and partial dismissal under § 1292(a)(1) where orders

were “inextricably bound up” with findings and conclusions

in support of permanent injunction).

II. ARTICLE III STANDING

The district court did not grapple with the Article III stand-

ing issue, apparently because UPS did not raise a standing

challenge below but instead framed its challenge as one to

Bates’s failure to prove his prima facie case. Standing is a

threshold matter central to our subject matter jurisdiction. We

must assure ourselves that the constitutional standing require-

ments are satisfied before proceeding to the merits. United

States v. Hays, 515 U.S. 737, 742 (1995); Casey v. Lewis, 4

F.3d 1516, 1524 (9th Cir. 1993).

[1] In a class action, standing is satisfied if at least one

named plaintiff meets the requirements. See Armstrong v.

Davis, 275 F.3d 849, 860 (9th Cir. 2001). The plaintiff class

bears the burden of showing that the Article III standing

requirements are met. See id. at 860-61. As we know from the

oft-repeated passages in Lujan, standing requires that (1) the

plaintiff suffered an injury in fact, i.e., one that is sufficiently

“concrete and particularized” and “actual or imminent, not

conjectural or hypothetical,” (2) the injury is “fairly trace-

able” to the challenged conduct, and (3) the injury is “likely”

to be “redressed by a favorable decision.” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560-61 (1992) (quotation marks and

citations omitted). Standing must be shown with respect to

each form of relief sought, whether it be injunctive relief,

damages or civil penalties. Friends of the Earth, Inc. v.

Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).

Here, only liability and equitable relief were at issue in the

BATES v. UNITED PARCEL SERVICE 16897

district court, not damages. Thus, we consider only whether

at least one named plaintiff satisfies the standing requirements

for injunctive relief.

[2] The standing formulation for a plaintiff seeking pro-

spective injunctive relief is simply one implementation of

Lujan’s requirements. The plaintiff must demonstrate that he

has suffered or is threatened with a “concrete and particular-

ized” legal harm, Lujan, 504 U.S. at 560, coupled with “a suf-

ficient likelihood that he will again be wronged in a similar

way.” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).

As to the second inquiry, he must establish a “real and imme-

diate threat of repeated injury.” O’Shea v. Littleton, 414 U.S.

488, 496 (1974). “[P]ast wrongs do not in themselves amount

to [a] real and immediate threat of injury necessary to make

out a case or controversy.” Lyons, 461 U.S. at 103. However,

“past wrongs are evidence bearing on whether there is a real

and immediate threat of repeated injury.” O’Shea, 414 U.S. at

496. In addition, the claimed threat of injury must be likely

to be redressed by the prospective injunctive relief. Graham

v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1003 (9th

Cir. 1998) (recognizing that “[p]laintiffs need not demonstrate

that there is a ‘guarantee’ that their injuries will be redressed

by a favorable decision” but “only that a favorable decision

is likely to redress” their injuries) (quotation marks and cita-

tion omitted).

Although the district court did not make explicit findings

on standing, it made detailed findings on relevant and analo-

gous issues sufficient to support standing. “[W]e will affirm

standing . . . unless those findings are clearly erroneous.”

Armstrong, 275 F.3d at 861. Based on the district court’s find-

ings regarding named plaintiff Barbaranti Oloyede, we con-

clude that he and class member Elias Habib satisfy the

standing requirements with respect to injunctive relief.

As a general matter, the class includes only those individu-

als who failed or would fail the DOT hearing test. Oloyede

16898 BATES v. UNITED PARCEL SERVICE

worked for UPS beginning in 1991, first applied for a

package-car driver position in 1998, and expressed interest in

that position several additional times, most recently in 2003.

His supervisor told him in 2000 that he would have to pass a

hearing exam to become a driver. Oloyede was not hired as

a package-car driver.

[3] Both aspects of the injury requirement are met in this

case. First, UPS’s failure to hire Oloyede as a package-car

driver was a sufficiently “concrete and particularized” harm,

in that the injury affected him “in a personal and individual

way.” Lujan, 504 U.S. at 560 n.1. Second, the crux of this

lawsuit is the challenge to UPS’s written qualification stan-

dard, including the DOT hearing standard. Where, as here,

“the harm alleged is directly traceable to a written policy . . .

there is an implicit likelihood of its repetition in the immedi-

ate future.” Armstrong, 275 F.3d at 861; see also Fortyune v.

Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004).

[4] The causation element of standing is easily satisfied.

Oloyede’s claimed injury—failure to hire him as a package-

car driver because of a hearing disability—was caused and

will continue to be caused by UPS’s application of the DOT

hearing standard. See, e.g., Mortensen v. County of Sacra-

mento, 368 F.3d 1082, 1086 (9th Cir. 2004) (holding that

plaintiff showed there was a “significant possibility” that he

would suffer future injury based upon county’s written policy

regarding compensatory time off, where the policy had been

applied to him in the past and remained in place).

Finally, we turn to the issue of redressability. After certifi-

cation of the class in 2001, Oloyede accepted a position at

UPS which, due to the terms of a collective bargaining agree-

ment, precludes him from presently bidding for a package-car

driver position. UPS argues that because Oloyede cannot now

bid for a package-car driver slot, he could never be a “quali-

fied” applicant who would benefit from an injunction. This

argument is a backhanded way of attacking Oloyede’s stand-

BATES v. UNITED PARCEL SERVICE 16899

ing as a named plaintiff and suggesting that his claim is moot.

Indeed, mootness is described as “the doctrine of standing set

in a time frame.” United States Parole Comm’n v. Geraghty,

445 U.S. 388, 397 (1980) (quoting Henry P. Monaghan, Con-

stitutional Adjudication: The Who and When, 82 YALE L.J.

1363, 1384 (1973)).

Even if UPS is correct that Oloyede’s claim is either not

redressable or is moot because he is no longer in a driver-

eligible position, questions we do not decide, the remaining

class members are not foreclosed from attaining relief since

the class was long ago duly certified. The Supreme Court has

acknowledged that “there is tension in [its] prior cases” with

respect to standing and adequacy in the class action context.

Gratz v. Bollinger, 539 U.S. 244, 263 n.15 (2003). The same

tension exists with respect to standing and mootness in class

actions. Id. See also Jean Wegman Burns, Standing and Moot-

ness in Class Actions: A Search for Consistency, 22 U.C.D.L.

REV. 1239 (1989). Nonetheless, even amidst these tensions, as

in Gratz, “whether the requirement is deemed one of ade-

quacy or standing [or mootness], it is clearly satisfied in this

case.” Gratz, 539 U.S. at 263. See E. Texas Motor Freight

Sys., Inc. v. Rodriguez, 431 U.S. 395, 406 n.12 (1977) (noting

that it would be error for a district court to dismiss class alle-

gations where it had already certified a class and “only later

had it appeared that the named plaintiffs were not class mem-

bers or were otherwise inappropriate class representatives.”).

As the Court reasoned in Sosna v. Iowa, once a class action

has been certified, “the class of unnamed persons described in

the certification acquire[s] a legal status separate from the

representative.” Sosna v. Iowa, 419 U.S. 393, 399 (1975).

Sosna involved a class action challenging the constitutionality

of a state statute imposing a one-year residency requirement

for instituting a divorce action. Id. at 397. At the time of the

district court judgment, plaintiff had not yet met the residency

requirement. Id. at 398. By the time the case reached the

Supreme Court, however, plaintiff had not only met the resi-

16900 BATES v. UNITED PARCEL SERVICE

dency requirement but also obtained a divorce in another

state. Id. at 398 & n.7. With regard to mootness, the Supreme

Court held that the “cases or controversies” requirement of

Article III— which requires a plaintiff with a live case or con-

troversy, not only at the time of filing and at the time of class

certification, but also when a court reviews the case—is satis-

fied by “a named defendant and a member of the class repre-

sented by the named plaintiff, even though the claim of the

named plaintiff has become moot.” Id. at 402. As one com-

mentator put it, “[w]hat saved Sosna from being moot was

class certification.” Burns, 22 U.C.D.L. REV. at 1248.

The following year the Court clarified Sosna in Franks v.

Bowman Transportation Company, 424 U.S. 747 (1976),

which involved a class action against an employer for racially

discriminatory employment practices. Although the named

representative no longer had a personal stake in the outcome

because he had been hired and properly discharged for cause,

the Court held that “[t]he unnamed members of the class

involved are identifiable individuals, individually named in

the record,” and “[n]o questions are raised concerning the

continuing desire of any of these class members for the

seniority relief presently in issue.” Id. at 756.

The Court cited Franks just one year later in East Texas

Motor Freight and observed that if “the initial certification

was proper and decertification not appropriate, the claims of

the class members would not need to be mooted or destroyed

because subsequent events or the proof at trial had under-

mined the named plaintiffs’ individual claims.” 431 U.S. at

406 n.12.

[5] These cases are instructive in analyzing class standing

in this appeal. It is not disputed that Oloyede had standing at

the time of certification, which is the snapshot in time for

determining initial standing. Even if his claim later became

moot or nonredressable, an identifiable member of the class,

Elias Habib, surely has standing. According to the district

BATES v. UNITED PARCEL SERVICE 16901

court, Habib, who is completely deaf, has a valid driver’s

license and twenty-seven years of driving experience. The

district court also found no evidence that he had been

involved in any accidents. Other than the DOT physical,

which Habib failed because of his hearing loss, there was no

other qualification standard that prevented him from applying

for the job. He accordingly satisfies the injury, causation, and

redressability prongs of Lujan and therefore has standing to

seek injunctive relief under the ADA. Because Habib has

standing to seek injunctive relief, the entire federal class has

standing. Armstrong, 275 F.3d at 860-61.

III. LEGAL FRAMEWORK APPLICABLE TO A “QUALIFICATION

STANDARD” CLAIM UNDER THE ADA

A. INITIAL CONSIDERATIONS

[6] The hearing standard at issue here is a facially discrimi-

natory qualification standard because it focuses directly on an

individual’s disabling or potentially disabling condition. See,

e.g., McGregor v. Nat’l R.R. Passenger Corp., 187 F.3d 1113,

1116 (9th Cir. 1999) (holding that a policy requiring employ-

ees to be “100% healed” or “fully healed” after an injury is

facially discriminatory and constitutes a per se violation of

the ADA). Instead of recognizing this posture, the district

court analyzed the claim as a “pattern-or-practice” disparate

treatment claim, applying the burden-shifting protocol set out

in Teamsters. See 431 U.S. at 360.

[7] A burden-shifting protocol is, however, unnecessary in

this circumstance. The fact to be uncovered by such a

protocol—whether the employer made an employment deci-

sion on a proscribed basis (here, disability in the form of hear-

ing impairment)—is not in dispute. 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 burden-shifting framework sometimes applicable to dispa-

rate treatment claims is unnecessary).

16902 BATES v. UNITED PARCEL SERVICE

[8] In addition, whether Bates established a prima facie

case of employment discrimination in the summary judgment

“burden-shifting” sense is moot after trial. The relevant

inquiry now is simply whether the evidence presented at trial

supports a finding of liability. See U.S. Postal Serv. Bd. of

Governors 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).

B. APPLICABLE PROVISIONS OF THE ADA

[9] The enforcement provision of Title I of the ADA, under

which Bates brought suit, provides:

No covered entity shall discriminate against a quali-

fied individual with a disability because of the dis-

ability 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.

42 U.S.C. § 12112(a). Thus, under the ADA, an employee

bears the ultimate burden of proving that he is (1) disabled

under the Act, (2) a “qualified individual with a disability,”

and (3) discriminated against “because of” the disability.

Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir.

1999).

There is no dispute that the class members, who are hearing

impaired, are disabled. Instead, we focus on the two other key

terms in the statute: “qualified individual” and “discriminate.”

To unpack the meaning of these terms, we look to the statute.

[10] A “qualified individual” is “an individual with a dis-

ability who, with or without reasonable accommodation, can

perform the essential functions of the employment position

that such individual holds or desires.” 42 U.S.C. § 12111(8)

BATES v. UNITED PARCEL SERVICE 16903

(emphasis added); see also 29 C.F.R. § 1630.2(m). “Essential

functions” are “fundamental job duties of the employment

position . . . not includ[ing] the marginal functions of the posi-

tion.” 29 C.F.R. § 1630.2(n)(1); see Cripe v. City of San Jose,

261 F.3d 877, 887 (9th Cir. 2001). “If a disabled person can-

not perform a job’s ‘essential functions’ (even with a reason-

able accommodation), then the ADA’s employment

protections do not apply.” Cripe, 261 F.3d at 884-85. “If, on

the other hand, a person can perform a job’s essential func-

tions, and therefore is a qualified individual, then the ADA

prohibits discrimination” with respect to the employment

actions outlined in 42 U.S.C. § 12112(a). Id.

[11] Discrimination under the ADA includes the use of

“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.” 42 U.S.C.

§ 12112(b)(6) (emphasis added).5 The EEOC regulations

define “qualifications standards” as “the personal and profes-

sional attributes including the skill, experience, education,

physical, medical, safety and other requirements established

by a covered entity as requirements which an individual must

meet in order to be eligible for the position held or desired.”

29 C.F.R. § 1630.2(q).

[12] In a case involving the use of a qualification standard,

the ADA provides employers with a “business necessity”

defense:

5

In the First Amended Complaint, Bates alleged that UPS’s hearing

standard constituted discrimination under § 12112(b)(6), set out above,

and under § 12112(b)(3), which defines discrimination to include “utiliz-

ing standards, criteria, or methods of administration [ ] that have the effect

of discrimination on the basis of disability.” 42 U.S.C. § 12112(b)(3)(A).

The district court, and the parties on appeal, focused only on

§ 12112(b)(6).

16904 BATES v. UNITED PARCEL SERVICE

It may be a defense to a charge of discrimination

under this chapter that an alleged application of

qualification 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 disabil-

ity has been shown to be job-related and consistent

with business necessity, and such performance can-

not be accomplished by reasonable accommodation,

as required under this subchapter.

42 U.S.C. § 12113(a) (emphasis added).

Where an across-the-board safety “qualification standard”

is invoked, the question then becomes what proof is required

with respect to being a “qualified individual,” that is, one who

can perform the job’s essential functions. Before an employee

can challenge an employer’s qualification standard, however,

an employee must first prove that he is a “qualified individu-

al” within the meaning of the ADA, that is, one who can per-

form the job’s essential functions with or without reasonable

accommodation. Bates argues that he meets all of the essential

functions of the package-car driver position, including being

a “safe” driver. Although Bates acknowledges that class

members do not meet the DOT hearing standard, he contends

that hearing is not an essential function, and thus there are

qualified individuals who meet UPS’s other job requirements.

UPS, on the other hand, urges that class members are not

qualified individuals because they cannot meet UPS’s require-

ment that all drivers pass the DOT hearing standard, and thus

cannot meet an essential function of the job—DOT certifica-

tion to drive all commercial vehicles. UPS also argues that

each class member is required to show not only that he is a

“safe” driver in the sense that he has a “clean driving record,”

but also that he is a safe driver despite being hearing

impaired.

We turn first to the qualified individual inquiry and then to

the question of discrimination.

BATES v. UNITED PARCEL SERVICE 16905

C. QUALIFIED INDIVIDUAL WITH A DISABILITY

As the plaintiff, Bates bears the burden to prove that he is

“qualified.” See Nunes, 164 F.3d at 1246; Kennedy v.

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

tion for a position is a two-step inquiry. The court first exam-

ines whether the individual satisfies the “requisite skill,

experience, education and other job-related requirements” of

the position. The court then considers whether the individual

“can perform the essential functions of such position” with or

without a reasonable accommodation. 29 C.F.R. § 1630.2(m);

42 U.S.C. § 12111(8); see Humphrey v. Memorial Hospitals

Ass’n, 239 F.3d 1128, 1135 (9th Cir. 2001); see also EEOC

v. Convergys Customer Management Group, Inc., 491 F.3d

790, 794-95 (8th Cir. 2007); Branham v. Snow, 392 F.3d 896,

904 (7th Cir. 2004).

1. JOB REQUISITES

[13] The package-car driver job requires an applicant to

meet UPS’s threshold seniority requirements for the package-

car driver position, complete an application, be at least

twenty-one years of age, possess a valid driver’s license, and

have a clean driving record by UPS’s local standards. The dis-

trict court’s finding that named plaintiff Oloyede and class

member Elias Habib meet these prerequisites is not clearly

erroneous.

2. ESSENTIAL FUNCTIONS

To prove that he is “qualified,” the applicant also must

show that he can perform the “essential functions” of the job.

42 U.S.C. § 12111(8). See Nunes, 164 F.3d at 1246; Kennedy,

90 F.3d at 1481. As noted earlier, a job’s “essential functions”

are “fundamental job duties of the employment position . . .

not includ[ing] the marginal functions of the position.” 29

C.F.R. § 1630.2(n)(1); see also id. § 1630.2(n)(2)-(3) (elabo-

rating on reasons and evidence relevant to an essential func-

16906 BATES v. UNITED PARCEL SERVICE

tion showing). “Essential functions” are not to be confused

with “qualification standards,” which an employer may estab-

lish for a certain position. Whereas “essential functions” are

basic “duties,” 29 C.F.R. § 1630.2(n)(1), “qualification stan-

dards” are “personal and professional attributes” that may

include “physical, medical [and] safety” requirements. Id.

§ 1630.2(q). The difference is crucial.

The statute does not require that a person meet each of an

employer’s established “qualification standards,” however, to

show that he is “qualified.” And, indeed, it would make little

sense to require an ADA plaintiff to show that he meets a

qualification standard that he undisputedly cannot meet

because of his disability and that forms the very basis of his

discrimination challenge.6

[14] Although the plaintiff bears the ultimate burden of per-

suading the fact finder that he can perform the job’s essential

functions, we agree with the Eighth Circuit’s approach that

“an employer who disputes the plaintiff’s claim that he can

perform the essential functions must put forth evidence estab-

lishing those functions.” EEOC v. Wal-Mart, 477 F.3d 561,

568 (8th Cir. 2007). The genesis of this rule is the recognition

that “much of the information which determines those essen-

tial functions lies uniquely with the employer.” Benson v. Nw.

Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir. 1995). In addition,

6

While the plain language of the statute suffices to support our conclu-

sion, it bears noting that the legislative history favors our reading as well.

One of the Senate committee reports states that the qualification standard

section of the ADA was meant to apply to “a person with a disability

[who] applies for a job and meets all selection criteria except one that he

or she cannot meet because of a disability.” S. Rep. No. 101-116, at 37

(1989) (emphasis added). The legislative history also cites with approval

Prewitt v. U.S. Postal Serv., 662 F.2d 292, 306 (5th Cir. 1981) (cited by

H. Rep. No. 101-485(III), at 42) (1990) reprinted in 1990 U.S.C.C.A.N.

445, 446, a Rehabilitation Act case that adopted the same prima facie case

standard adopted here. See Prewitt, 662 F.2d at 306 (requiring the plaintiff

to prove as part of his prima facie case “that he is qualified for the position

under all but the challenged criteria” (emphasis added)).

BATES v. UNITED PARCEL SERVICE 16907

the ADA and implementing regulations direct fact finders to

consider, among other things, “the employer’s judgment as to

what functions of a job are essential,” 42 U.S.C. § 12111(8);

job descriptions prepared before advertising or interviewing

applicants, id.; “[t]he amount of time spent on the job per-

forming the function,” 29 C.F.R. § 1630.2(n)(3)(iii); “[t]he

consequences of not requiring the [applicant or employee] to

perform the function,” id. § 1630.2(n)(3)(iv); and the work

experience of current and former employees. Id. § 1630.2(n)

(3)(vi), (vii). Thus, to the extent that an employer challenges

an ADA plaintiff’s claim that he can perform the job’s essen-

tial functions, we think it appropriate to place a burden of pro-

duction on the employer to come forward with evidence of

those essential functions. See Wal-Mart, 477 F.3d at 568;

Benson, 62 F.3d at 1113.

[15] At trial the parties agreed that two of the “essential

functions” of the package-car driver position are (1) “the abil-

ity to communicate effectively” and (2) “the ability to drive

safely.” UPS urged that “the ability to drive DOT-regulated

vehicles” was another essential function. The district court

rejected that contention, finding that UPS permits other driv-

ers who cannot drive all DOT-regulated vehicles to drive

package cars.7 For example, UPS has protocols in place for

driver applicants who cannot pass certain DOT certification

requirements because of their vision impairments or insulin-

dependent diabetes, but who can pass less stringent physical

requirements. UPS has not shown that the district court’s

determination that DOT certification is not an essential job

function was clearly erroneous. See, e.g., Taylor v. Rice, 451

F.3d 898, 907 (D.C. Cir. 2006) (concluding that issues of fact

regarding job’s essential functions precluded summary judg-

ment for employer because record showed that, in practice,

7

The determination of essential functions is a factual finding we review

for clear error. See EEOC v. E.I. Du Pont de Nemours & Co., 480 F.3d

724, 730 (5th Cir. 2007) (“Appellate review of the jury’s determination of

the essential functions of [the employee’s] job is highly deferential.”).

16908 BATES v. UNITED PARCEL SERVICE

employer did not require all other employees to abide by

claimed essential function); Davidson v. Am. Online, Inc., 337

F.3d 1179, 1191 (10th Cir. 2003) (“The question of whether

a job requirement is a necessary requisite to employment ini-

tially focuses on whether an employer actually requires all

employees in the particular position to satisfy the alleged job-

related requirement.”).

Only the second essential function, “safe driving,” is at

issue in this appeal. UPS argues that “hearing” at a level suffi-

cient to pass the DOT hearing standard is either a stand-alone

essential job function or part and parcel of being a safe driver.

This point illustrates the critical difference between a job’s

essential functions—“effective communication” or “safe

driving”—versus a qualification standard based on “personal

or professional attributes,” such as hearing at a certain level.

The question, then, is whether plaintiffs established that they

meet the essential function of safe driving.

The district court found that Oloyede met UPS’s threshold

requirements of having no accidents or moving violations

within the last year, no DUI within the last three years, and

no more than three moving violations in the last three years.

Habib also met the prerequisites to apply for the position: a

valid driver’s license, twenty-seven years of driving experi-

ence, and no evidence of even a minor traffic accident.8

UPS urges that Oloyede and Habib are required to show not

only that they are “safe” drivers in the sense that they have a

“clean driving record,” but also that they are safe drivers even

though they are hearing impaired. The district court rejected

that argument, stating that imposing this burden would require

plaintiffs to disprove the employer’s business necessity affir-

mative defense, i.e., that the employer is justified in imposing

8

It appears from the record (though it is not entirely clear) that neither

Oloyede nor Habib was permitted to take UPS’s road test or proceed to

driver training because they could not meet the DOT hearing standard.

BATES v. UNITED PARCEL SERVICE 16909

a qualification standard that facially screens out individuals

with a specific disability.

Because UPS has linked hearing with safe driving, UPS

bears the burden to prove that nexus as part of its defense to

use of the hearing qualification standard. The employees,

however, bear the ultimate burden to show that they are quali-

fied to perform the essential function of safely driving a pack-

age car. In so doing, Oloyede and Habib need not disprove the

validity of the hearing standard, but must demonstrate their

safe driving ability vis-a-vis package cars. The inquiry is not

whether Oloyede and Habib are capable of safely driving their

personal cars, but rather whether they can drive the package

cars at issue in this litigation. The district court did not make

a finding with respect to plaintiffs’ ability to drive package

cars safely. Merely finding an absence of evidence with

respect to driving a package car is insufficient. In short,

Oloyede and Habib bear the burden of proving that they are

qualified individuals with disabilities. They must show that

they can perform the essential job function of safely driving

package cars. Only if they meet this burden does the question

become whether the qualification standard used by the

employer satisfies the business necessity defense.

[16] By requiring UPS to justify the hearing test under the

business necessity defense, but also requiring plaintiffs to

show that they can perform the essential functions of the job,

we are not saying, nor does the ADA require, that employers

must hire employees who cannot safely perform the job, par-

ticularly where safety itself is an essential function. Nor are

we saying that an employer can never impose a safety stan-

dard that exceeds minimum requirements imposed by law.

However, when an employer asserts a blanket safety-based

qualification standard—beyond the essential job function—

that is not mandated by law and that qualification standard

screens out or tends to screen out an individual with a disabil-

ity, the employer—not the employee—bears the burden of

showing that the higher qualification standard is job-related

16910 BATES v. UNITED PARCEL SERVICE

and consistent with business necessity, and that performance

cannot be achieved through reasonable accommodation.

42 U.S.C. § 12113(a).

This approach is parallel to the one adopted in a “direct

threat” case under the ADA. 42 U.S.C. § 12113(b) (“The term

‘qualification standards’ may include a requirement that an

individual shall not pose a direct threat to the health or safety

of other individuals in the workplace.”). Although the specif-

ics of proof in direct threat and business necessity cases may

vary, the frameworks are parallel. We emphasize that UPS is

not required to meet the requirements of the direct threat

defense, but rather that cases under that section of the ADA

illuminate our analysis.

In Branham, the Seventh Circuit considered a qualification

standard that disqualified an individual from being an IRS

criminal investigator if the applicant had “[a]ny condition that

would hinder full, efficient performance of the duties of the[ ]

position[ ] or that would cause the individual to be a hazard

to himself/herself or to others . . . .” 392 F.3d at 900 (quoting

IRS qualification standard). Safety was an issue in Branham,

as it is here. The parties did not dispute that an essential job

requirement was the ability to function safely under the work-

ing conditions imposed on such employees. Id.

The IRS claimed that the applicant’s diabetes placed him at

risk of “subtle and/or sudden incapacitation, which would

place the applicant and others . . . at an extreme risk of safety

that would be unacceptable.” Id. (citation and quotation marks

omitted). The IRS also argued that the applicant bore the bur-

den of establishing as part of his prima facie case that he did

not pose a direct threat to himself or others. Id. at 906. In

rejecting the IRS’s position, the Seventh Circuit concluded

that the applicant need only establish that he was “otherwise

qualified” for the criminal investigator job by meeting the

job’s “essential functions.” Id. at 904-05. And, because the

IRS’s “safety” qualification standard regarding the medical

BATES v. UNITED PARCEL SERVICE 16911

condition incorporated the “direct threat” defense under the

ADA, the employer bore the burden of proving that the

employee was a direct threat. Id. at 906-07. The employee did

not have to disprove the claim that he was a direct threat as

part of his prima facie case of discrimination. Id. at 906-07.

The Branham approach works equally well in framing our

analysis of UPS’s hearing qualification standard. The

employee does not bear the burden to invalidate the employ-

er’s safety-based qualification standard. Nor is the employee

required to disprove UPS’s contention that, in order to be

safe, the driver must pass the DOT hearing standard—the

very qualification standard disputed in this case. See, e.g.,

Cripe, 261 F.3d at 889-90 (holding that a service requirement

that rendered only disabled officers ineligible for specialized

assignments could not be applied to them unless it was shown

to be job-related and consistent with business necessity, and

performance could not be achieved through reasonable

accommodation); McGregor, 187 F.3d at 1116 (explaining

that the ADA generally requires individualized assessment of

whether a qualified individual is able to perform essential

functions with or without reasonable accommodation, rather

than use of blanket qualification standards, like a “100%

healed” or “fully healed” policy, as substitute for such indi-

vidualized determination).

Similar to the court in Branham, we conclude that an

employee who shows that he meets the basic qualifications

for the package-car driver position (seniority, twenty-one

years of age, and holding a valid driver’s license) and can

drive a package car safely, including having a clean driving

record and passing the driving test, is an otherwise qualified

individual.

The last step of the “qualified individual” inquiry requires

a plaintiff to show that he is qualified “with or without rea-

sonable accommodation.” 42 U.S.C. § 12111(8). If the plain-

tiff proves that he can perform the job’s essential functions

16912 BATES v. UNITED PARCEL SERVICE

either without a reasonable accommodation or with such an

accommodation, then he has met his burden to show he is

qualified. See McGregor, 187 F.3d at 1115; Deane v. Pocono

Med. Ctr., 142 F.3d 138, 146 (3d Cir. 1998) (en banc). Here,

the district court did not explicitly discuss reasonable accom-

modation, although in finding that Oloyede and Habib met the

job requisites and could perform the essential function of safe

driving, it implicitly found that no accommodation was neces-

sary to meet those baseline requirements for UPS package-car

driver applicants.9

[17] Because the district court did not analyze whether

Oloyede and Habib are “qualified individuals” capable of per-

forming the “essential function” of safely driving a package

car in the framework discussed above, nor did it directly

undertake the “qualified individual” inquiry, we remand to the

district court for the employees to prove that they are so quali-

fied and for an analysis of reasonable accommodation. Thus,

we vacate the district court’s order denying UPS’s motion for

judgment on partial findings under Rule 52(c), and in the

alternative to decertify the nationwide class under

Rule 23(c)(1) and (d).

D. DISCRIMINATION BECAUSE OF DISABILITY

An employee bears the burden of proving that he was dis-

criminated against “because of” a disability. 42 U.S.C.

§ 12112(a). See Costa, 299 F.3d at 857 (“The employee’s ulti-

mate burden of proof in all cases remains the same: to show

by a preponderance of the evidence that the challenged

employment decision was ‘because of’ discrimination.”). The

qualification standard at issue—the DOT hearing standard—is

facially discriminatory and falls squarely within the ADA’s

definition of discrimination. 42 U.S.C. § 12112(b)(6)

(“discrimination” includes using qualification standards,

9

The question of reasonable accommodation also arises in the context

of the business necessity defense, as discussed below in § III.E.

BATES v. UNITED PARCEL SERVICE 16913

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”).

The district court found, and UPS does not contest, that

UPS applies a qualification standard that has the effect of dis-

criminating on the basis of disability and/or screens out the

class of employees who cannot pass the DOT hearing stan-

dard. See 42 U.S.C. § 12112(b)(6). Such discrimination vio-

lates the ADA unless UPS can prove a valid defense to its use

of the DOT hearing standard. We therefore turn to UPS’s

defense that its reliance on the DOT hearing standard is justi-

fied under the business necessity defense.

E. EMPLOYER’S “BUSINESS NECESSITY” DEFENSE

Under the ADA, an employer may assert an affirmative

defense to a claim that application of a qualification standard,

test or selection criteria discriminates on the basis of disabil-

ity. See 42 U.S.C. § 12113(a); Albertson’s, 527 U.S. at 568.

Although the shorthand reference is the “business necessity”

defense, the defense also incorporates requirements of job-

relatedness and reasonable accommodation.

[18] We most recently addressed the ADA’s business

necessity defense in Morton, 272 F.3d 1249. There, we held

that the ADA’s version of the business necessity defense

incorporates concepts from both the traditional Title VII busi-

ness necessity defense to disparate impact claims and the

BFOQ defense in Title VII and Age Discrimination in

Employment Act (ADEA) disparate treatment challenges to a

proscribed classification. Id. at 1260-63. Today, we revisit our

conception of the business necessity defense under the ADA

and overrule Morton to the extent that it conflicts with this opin-

ion.10 Specifically, we reject Morton’s adaptation of the

10

We do agree with Morton’s conclusion that the ADA’s business

necessity defense may be asserted to defend against disparate treatment,

16914 BATES v. UNITED PARCEL SERVICE

Title VII and ADEA BFOQ safety standard requirement in

the ADA context.

[19] We look first and foremost to the text of the ADA:

It may be a defense to a charge of discrimination

under this chapter that an alleged application of

qualification 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 disabil-

ity has been shown to be job-related and consistent

with business necessity, and such performance can-

not be accomplished by reasonable accommodation,

as required under this subchapter.

42 U.S.C. § 12113(a) (emphasis added). To successfully

assert the business necessity defense to an allegedly discrimi-

natory application of a qualification standard, test or selection

criteria, an employer bears the burden of showing that the

qualification standard is (1) “job-related,” (2) “consistent with

business necessity,” and (3) that “performance cannot be

accomplished by reasonable accommodation.” Id.; see Cripe,

261 F.3d at 890 (holding that the employer bears the burden

of proving affirmative defense of business necessity).

Rather than analyzing each of these statutory components

of the business necessity defense, Morton looked to other pro-

visions of the ADA (the “qualified individual” requirement,

the “undue hardship” defense, and the “reasonable accommo-

dation” provision of the business necessity defense), and con-

cluded that these provisions “suggest that Congress must have

disparate impact, and failure to accommodate claims under the ADA.

Morton, 272 F.3d at 1260-61 (discussing interplay among 42 U.S.C.

§ 12112(b)’s various definitions of discrimination and § 12113(a)’s provi-

sion of the business necessity defense); see Raytheon Co. v. Hernandez,

540 U.S. 44, 52-53 (2003) (recognizing applicability of business necessity

defense to both disparate treatment and disparate impact claims under the

ADA).

BATES v. UNITED PARCEL SERVICE 16915

intended to permit across-the-board exclusion of employees

based upon disability-related safety criterion only on a show-

ing somewhat similar to the one used for safety qualifications

under the Title VII and ADEA [BFOQ] standard.” Morton,

272 F.3d at 1261-62. We mistakenly concluded that “[i]f a

transportation employer can demonstrate neither that all per-

sons who fail to meet a disability-related safety criterion pre-

sent an unacceptable risk of danger nor that it is highly

impractical more discretely to determine which disabled

employees present such an unacceptable risk—the Title VII/

ADEA [BFOQ] safety standard requirements—we would not

think that the safety criterion would provide an accurate mea-

sure of actual ability.” Id. at 1263.

[20] However, as Morton recognized, “there is no [BFOQ]

defense as such in the ADA.” Id. at 1261. UPS argues, and we

agree, that it is improper to import the BFOQ standard into

the ADA business necessity defense. Instead, we return to the

statutory provisions Congress set out for the ADA’s version

of the business necessity defense.

To show “job-relatedness,” an employer must demonstrate

that the qualification standard fairly and accurately measures

the individual’s actual ability to perform the essential func-

tions of the job. See Cripe, 261 F.3d at 890; H.R. Rep. No.

101-485 (III), at 32 (1990), reprinted in 1990 U.S.C.C.A.N.

445, 454-55;11 see also Belk v. Sw. Bell Tel. Co., 194 F.3d 946

(8th Cir. 1999);12 Hendricks-Robinson v. Excel Corp., 154

11

“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

criterion must concern an essential, and not marginal, aspect of the job . . .

[and] be carefully tailored to measure the actual ability of a person to per-

form an essential function of the job.” H.R. Rep. No. 101-485 (III), at 32

(1990), reprinted in 1990 U.S.C.C.A.N. 445, 454-55.

12

In Belk, the Eighth Circuit formulated its test as follows:

An employer urging a business necessity defense must validate

the test or exam in question for job-relatedness to the specific

16916 BATES v. UNITED PARCEL SERVICE

F.3d 685, 699 (7th Cir. 1998). When every person excluded

by the qualification standard is a member of a protected class

—that is, disabled persons—an employer must demonstrate a

predictive or significant correlation between the qualification

and performance of the job’s essential functions. Albermarle

Paper Co. v. Moody, 422 U.S. 405, 431 (1975); Cf. Clady v.

County of Los Angeles, 770 F.2d 1421, 1432 (9th Cir. 1985)

(“As a general principle, the greater the test’s adverse impact,

the higher the correlation which will be required.”) (analyzing

business necessity defense to Title VII disparate impact

claim).

[21] To show that the disputed qualification standard is

“consistent with business necessity,” the employer must show

that it “substantially promote[s]” the business’s needs. Cripe,

261 F.3d at 890 (quoting Bentivegna v. U.S. Dep’t of Labor,

694 F.2d 619, 621-22 (9th Cir. 1982) (interpreting the term

“business necessity” for purposes of the Rehabilitation Act of

1973)). As we observed in Cripe: “The ‘business necessity’

standard is quite high, and is not to be confused with mere

expediency.” Cripe, 261 F.3d at 890 (citation, quotation

marks and alteration omitted). For a safety-based qualification

standard, “[i]n evaluating whether the risks addressed by . . .

[the] qualification standard constitute a business necessity, the

court should take into account the magnitude of possible harm

as well as the probability of occurrence.” EEOC v. Exxon

Corp., 203 F.3d 871, 875 (5th Cir. 2000) (noting that “[t]he

acceptable probability of an incident will vary with the poten-

tial hazard posed by the particular position: a probability that

might be tolerable in an ordinary job might be intolerable for

a position involving atomic reactors, for example”).

skills and physical requirements of the sought-after position. Fur-

thermore, an examiner must consider meaningful work-related

information, including the type of activity to be performed [and]

the level and duration of effort required.

Belk, 194 F.3d at 951 (citation and quotation marks omitted).

BATES v. UNITED PARCEL SERVICE 16917

[22] Finally, to show that “performance cannot be accom-

plished by reasonable accommodation,” the employer must

demonstrate either that no reasonable accommodation cur-

rently available would cure the performance deficiency or that

such reasonable accommodation poses an “undue hardship”

on the employer.13 See 42 U.S.C. §§ 12113(a), 12111(10)

(defining “undue hardship”). See McGregor, 187 F.3d at

1116; see also Hendricks-Robinson, 154 F.3d at 699 (“Even

when ‘physical fitness’ is a selection criterion that is related

to an essential function of the job . . . it ‘may not be used to

exclude an individual with a disability if that individual could

satisfy the criterion with the provision of a reasonable accom-

modation.’ ”) (quoting 29 C.F.R. pt. 1630, App. § 1630.10)

(quotation marks and alterations omitted).

The ADA does not provide a comprehensive recitation of

what is encompassed by a reasonable accommodation, but

gives some examples of what the term “may include.” 42

U.S.C. § 12111(9); 29 C.F.R. § 1630.2(o)(2); see also 29

C.F.R. §§ 1630.2(o)(1) (defining “reasonable accommoda-

tion” to include “[m]odifications or adjustments” to applica-

tion processes, work environment, and access to benefits and

privileges of employment). Among the examples are accom-

modations such as:

(A) making existing facilities used by employees

readily accessible to and usable by individuals with

disabilities; and

(B) job restructuring, part-time or modified work

schedules, reassignment to a vacant position, acqui-

sition or modification of equipment or devices,

appropriate adjustment or modifications of examina-

13

S. Rep. No. 101-116, at 27 (“[T]his legislation prohibits use of a blan-

ket rule excluding people with certain disabilities except in the very lim-

ited 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.”

16918 BATES v. UNITED PARCEL SERVICE

tions, training materials or policies, the provision of

qualified readers or interpreters, and other similar

accommodations for individuals with disabilities.

42 U.S.C. § 12111(9). Making a showing as to reasonable

accommodation “may entail adopting an alternative, less dis-

criminatory criterion.” H.R. Rep. 101-485(II), 1990

U.S.C.C.A.N. 303, 354 (1990); accord S. Rep. No. 101-116.

[23] In rejecting UPS’s business necessity defense to appli-

cation of the DOT hearing standard to all package-car driving

positions, the district court concluded that “UPS has demon-

strated neither that all or substantially all deaf drivers pose a

higher risk of accidents than non-deaf drivers nor that there

are no practical criteria for determining which deaf drivers

pose a heightened risk and which do not. Additionally, UPS

has not demonstrated that it would be impossible to develop

empirical evidence that would be sufficient to make either

showing.” This finding does not track the statutory elements

of the business necessity defense. Because the district court

understandably based its rationale on the then-extant Morton

framework, we vacate the finding that UPS violated Bates’s

rights under the ADA, vacate the injunction, and remand for

proceedings consistent with this opinion. We leave to the dis-

trict court the determination whether additional evidence is

appropriate in light of the significant change in the legal land-

scape of this case.14

One further aspect of Morton bears noting here. As part of

its business necessity analysis under Morton, the district court

14

Application of the business necessity defense is fact-intensive and

requires close analysis by the district court. We note, however, that the

employer is entitled to use a method of selecting drivers that will retain

the overall safety record of its driver pool. Any suggestion in the district

court’s opinion that hearing-impaired drivers may be held to a lower

safety standard than hearing drivers is disapproved. Ultimately, a disabled

driver bears the burden to demonstrate that he can safely drive a package

car.

BATES v. UNITED PARCEL SERVICE 16919

also rejected UPS’s reliance on the DOT’s hearing standard.

The district court pointed to Morton’s statement that “the

existence of the—by its own terms inapplicable—DOT stan-

dard cannot shoulder UPS’s statutory burden” to show busi-

ness necessity. Morton, 272 F.3d at 1264-65 (holding that the

mere existence of government safety standard did not demon-

strate UPS’s business necessity defense and fact issues pre-

cluded summary judgment).

Here, UPS offered up the DOT standard as evidence that,

for safety purposes, a certain level of hearing is necessary to

drive non-DOT-regulated vehicles. According to UPS, there

is complete congruity between the positions of driving a

DOT-regulated package car (more than 10,000 pounds) and

driving a vehicle that weighs a little less. UPS argued that

package cars weighing almost five tons do not have operating

characteristics similar to passenger cars and pose greater risks

than do passenger cars.

To be sure, DOT’s regulation does not apply to the cate-

gory of vehicles at issue in this case. However, that circum-

stance does not mean that the standard has no relevance to the

employer’s safety argument. UPS is entitled to use as some

evidence of its business necessity defense the fact that it relied

on a government safety standard, even where the standard is

not applicable to the category of conduct at issue. To the

extent Morton suggests or is interpreted to the contrary, it is

overruled. Cf. Albertson’s, 527 U.S. at 577 (holding that an

employer is not required to justify its decision to require that

employees meet an applicable government safety regulation,

even if the government permits waiver of the applicable

requirements under an experimental policy). The parallel con-

sideration applies to an employee; that is, an employee may

offer as evidence challenging the validity or applicability of

a safety standard the government’s refusal to adopt such stan-

dard to govern the conduct at issue. See, e.g., 53 Fed. Reg.

18042, 18044 (discussing DOT’s rejection of UPS’s attempt

to apply DOT’s physical requirements to trucks under 10,000

16920 BATES v. UNITED PARCEL SERVICE

pounds because (1) smaller trucks and vans have “operating

characteristics” more comparable to cars; and (2) smaller

trucks and vans pose a lesser “safety risk” than large trucks).

Thus, while certainly not dispositive of UPS’s showing of

job-relatedness, business necessity or the reasonableness of

potential accommodations, UPS’s reliance on the government

safety standard with respect to other vehicles in its fleet

should be entitled to some consideration as a safety bench-

mark. Whether, as UPS puts it, “non-DOT package cars in the

UPS fleet share significant risk characteristics with their

slightly larger cousins” is a factual question of the congruity

between vehicles and drivers in UPS’s non-DOT fleet and

those regulated by DOT. See Johnson v. Mayor & City Coun-

cil, 472 U.S. 353, 371 (1985) (federal rules on mandatory

retirement age for firefighters may be relevant to nonfederal

firefighters, depending on congruity of the occupations). We

leave it to the fact finder to determine how much weight to

give such evidence.

IV. CALIFORNIA STATE LAW CLAIMS

A. FEHA

UPS challenges the district court’s holding that it violated

the FEHA, arguing that there is no “qualified” plaintiff under

the FEHA’s requirements. UPS also argues that because dif-

ferent defenses are available under the FEHA than the ADA,

the district court erred in concluding that because UPS vio-

lated the ADA, it a fortiori violated the FEHA with respect

to the California subclass of plaintiffs.

[24] The California Supreme Court recently interpreted the

FEHA as in accord with the ADA’s requirement that a plain-

tiff asserting disability discrimination bears the burden of

proving that he is a “qualified individual.” Green v. Califor-

nia, 64 Cal. Rptr. 3d 390, 396 (Ca. 2007). In a supplemental

submission to this court, UPS, citing Green, contends that

BATES v. UNITED PARCEL SERVICE 16921

Oloyede—a named plaintiff and class representative of the

California subclass—has not met his burden to show that he

is a qualified individual within the meaning of the FEHA.

UPS argues, as it did with respect to the ADA claims, that

Oloyede is not qualified because he is unable to pass the DOT

hearing test and he has not otherwise demonstrated that he can

drive package cars safely.

As the court in Green explained:

Under the FEHA, it is unlawful “[f]or an employer,

because of the race, religious creed, color, national

origin, ancestry, physical disability, mental disabil-

ity, medical condition . . . of any person, . . . to bar

or to discharge the person from employment or from

a training program leading to employment, or to dis-

criminate against the person in compensation or in

terms, conditions, or privileges of employment.”

[Cal. Gov’t Code § 12940(a)] Although section

12940 proscribes discrimination on the basis of an

employee’s disability, it specifically limits the reach

of that proscription, excluding from coverage those

persons who are not qualified, even with reasonable

accommodation, to perform essential job duties:

“This part does not prohibit an employer from refus-

ing to hire or discharging an employee with a physi-

cal or mental disability . . . where the employee,

because of his or her physical or mental disability, is

unable to perform his or her essential duties even

with reasonable accommodations, or cannot perform

those duties in a manner that would not endanger his

or her health or safety or the health or safety of oth-

ers even with reasonable accommodations.”

(§ 12940, subd. (a)(1).)

Id. at 395.

Thus, a plaintiff asserting a disability employment discrimi-

nation claim under the FEHA must show that he is a “quali-

16922 BATES v. UNITED PARCEL SERVICE

fied individual,” meaning that he “can perform the essential

duties of the employment position with reasonable accommo-

dation.” Id. at 397 (citing Cal. Gov’t Code § 12940(a)(1)).

The court further observed: “We see no statutory basis for

construing the FEHA any differently from the ADA with

regard to a plaintiff employee’s burden of proof.” Id.

[25] The bases for UPS’s challenge to Oloyede’s “qualified

individual” status under the FEHA are identical to the argu-

ments we rejected with respect to his qualified individual

showing under the ADA.15 Because we are vacating the dis-

trict court’s determination that Oloyede and Habib were

“qualified individuals” under the ADA, we likewise vacate

the district court’s finding that the two were “qualified indi-

viduals” in the FEHA context.

After the district court’s decision, we had occasion to

address the interplay between the defenses in the FEHA and

the ADA. In EEOC v. United Parcel Service, Inc., we

observed that the FEHA’s “safety-of-others defense has no

direct analogue 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 lia-

ble under the FEHA, arguing, among other things, that it has

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

Because our clarification of the applicable legal standard

may bear on the district court’s analysis, we do not address

the finding that UPS violated the FEHA. Instead, on remand,

the district court will have ample opportunity to reconsider

this issue in light of EEOC v. United Parcel Service, Inc. See

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

15

UPS also argues that Oloyede is an inadequate class representative

because he is unable to bid for a package-car driver position from his cur-

rent position with UPS. We disposed of this argument with respect to the

issue of standing and conclude that the scope of relief, if any, is best

addressed by the district court on remand.

BATES v. UNITED PARCEL SERVICE 16923

an individualized showing that safety would be compromised

by each [employee’s] performance of driving duties,”

although “[c]ategorical evidence can be relevant.”).

B. UNRUH ACT

UPS also appeals the district court’s holding that it violated

the Unruh Act. 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.

Cal. Civ. Code § 51(b). Section 51(f) of the Unruh Act pro-

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

the Americans with Disabilities Act of 1990 shall also consti-

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

Bates contends that because UPS violated the ADA’s employ-

ment law provisions, it follows from section 51(f) that UPS

also violated the Unruh Act.

[26] Bates’s argument is foreclosed by our recent decision

in Bass v. County of Butte, in which we held that the Unruh

Act does not incorporate the employment discrimination pro-

visions under Title I of the ADA. See 458 F.3d at 982. We

reverse the district court’s conclusion that the Unruh Act

serves as a basis for relief against UPS.16

16

A California Court of Appeal held similarly in Williams v. Genentech,

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

California Supreme Court granted review of Williams, 49 Cal. Rptr. 3d

210 (2006), but deferred briefing pending the decision in Green v. Califor-

16924 BATES v. UNITED PARCEL SERVICE

V. INJUNCTION

The district court stayed enforcement of its injunction

pending UPS’s interlocutory appeal. We vacate the injunction

and remand to the district court for further proceedings con-

sistent with this opinion.

VACATED IN PART, REVERSED IN PART, AND

REMANDED. Each party shall bear its own costs on appeal.

BERZON, Circuit Judge, with whom Circuit Judge REIN-

HARDT joins, concurring in part, dissenting in part, and con-

curring in the judgment:

I would approach the “qualified individual” and Depart-

ment of Transportation (DOT) hearing standard inquiries dif-

ferently than does the majority, but do agree that this case

must be remanded for re-examination under the majority’s

statement of the business necessity framework. I therefore

concur only in Parts I, II, III(A)-(C)(1), III(D), III(E), IV(B),

and V of the majority opinion, and in the judgment.1

nia. Now that the decision in Green has been issued, if the California

Supreme Court reaches a different conclusion in Williams than we did 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’s Unruh Act claim.

1

To be clear: I do not concur in Parts III(C)(2) and IV(A), and in any

portion of the majority opinion that restates the holdings of those sections.

BATES v. UNITED PARCEL SERVICE 16925

I.

The majority holds that to be “qualified individuals with

disabilities” Oloyede and Habib (or some other member of the

class) must show that they can “perform the essential job

function of safely driving package cars.” Maj. Op. at 16909.

The majority opinion is entirely unclear, however, as to how

they are to do so. In my view, such a requirement can be

squared with the statute and with the complaint in this case,

if at all, only if understood as imposing a definable, threshold

burden.

1.

Oloyede and Habib ask in their complaint just that the dis-

trict court order UPS to “individually assess . . . hearing dis-

abled workers to determine if they are able to safely drive

vehicles where DOT regulations are not applicable.” In other

words, although the plaintiffs certainly hope eventually to

become package car drivers, they are not seeking to bypass

UPS’s package car driver testing, training, and probation pro-

grams and be placed directly into the driver’s seat. The dis-

trict court explicitly limited its relief to mandating individual

assessment.

UPS’s requirements and programs are extensive. First,

applicants must have adequate seniority and clean driving

records to begin the application process. Then, in addition to

the DOT physical, applicants must pass a driving test to enter

the program. If they pass, they enter a driving training course

with both on-the-road and classroom components. If they pass

that course, they embark on a thirty-day probationary period,

with supervisors sometimes riding along. Only if they pass all

these hurdles do those who enter the program become UPS

package car drivers.

The majority opinion would require the plaintiffs to bear

the ultimate burden of proving that they will be safe package

16926 BATES v. UNITED PARCEL SERVICE

car drivers, so as to show that they are qualified persons with

disabilities. But, perhaps because it does not recognize the

limited nature of the relief sought, the majority leaves unclear

what it is asking of the district court and of the parties on

remand with regard to that requirement.

Requiring the plaintiffs to prove that they will be safe pack-

age car drivers, as the majority opinion does, will unnecessar-

ily complicate this litigation on remand. “Safe” is not a self-

defining term, and particularly is not so in the context of

industrial safety decisions; nor is it self-evident whether any

particular scheme for predicting whether a person who has

never driven a package car safely will be able to do so is

likely to yield valid results.2 Thus, asking Oloyede and Habib

to prove that they are “safe” without providing guidance as to

how they are to do so, or as to how “safe” is “safe” in this

context, presents the litigants and the district court with an ill-

defined and complicated puzzle. Yet, such a requirement is

extraneous given the limited nature of the relief Oloyede and

Habib seek. UPS has designed evaluation methods using its

own vehicles to test for the degree of safety it requires, so it

makes little sense to suggest that Oloyede and Habib must

devise, validate, and pass their own safety tests and training

programs before they may sue to take UPS’s tests and training

programs — which, again, is all that they seek to do.

Here, what makes sense is to require the plaintiffs to meet

UPS’s threshold requirements for entry into the package car

driver testing and training program. UPS itself will then be

able individually to evaluate them for the job they desire,

according to UPS’s own standards and methods (with appro-

2

Industrial “safety” is necessarily a relative concept. Companies such as

UPS must accept that their operations can never be perfectly safe, and so

must determine the level of risk they are willing to take. Deciding whether

a given activity is sufficiently “safe” thus requires balancing the accept-

ability (in both moral and financial terms) of a certain degree of risk

against the costs of avoiding the risk and the company’s human resources

needs.

BATES v. UNITED PARCEL SERVICE 16927

priate accommodations, if requested and if the need for them

is proven, see 42 U.S.C. § 12111(8)-(9) (defining “qualified

individual” and “reasonable accommodation”); Dark, 451

F.3d at 1088 (explaining the reasonable accommodation pro-

cess)).3

Practically speaking, under the approach I suggest, once a

deaf applicant shows that he meets the normal threshold qual-

ifications for eligibility — that he is at least twenty-one years

of age, possesses a valid driver’s license, and has a clean driv-

ing record by UPS’s local standards — he has met his burden

of proof in this regard. It is then UPS’s burden to show, if it

desires to adopt as a threshold requirement a minimum hear-

ing level such as the DOT standard, that it can establish under

3

I note that to recognize that Oloyede and Habib suffer a discriminatory

wrong when they are rendered ineligible to compete for a driver job by

being barred from becoming candidates for the job is consistent with

antidiscrimination law generally. In Regents of the University of Califor-

nia v. Bakke, 438 U.S. 265, 281 n. 14 (1978), the Supreme Court rejected

the notion that Bakke, who was challenging medical school admissions

affirmative action policies that he contended discriminated against him,

was required to “prove that he would have been admitted in the absence

of the [policies]” to have standing to challenge them. Rather, “the Univer-

sity’s decision not to permit Bakke to compete for all 100 places in his

class, simply because of his race,” satisfied the injury requirement. Id.

Similarly, in Northeast Florida Chapter of the Associated General Con-

tractors of America v. Jacksonville, 508 U.S. 656, 664 (1993), a contractor

group could challenge a city’s affirmative action policy without having to

show that “one or more of its members would have been awarded a con-

tract but for the challenged ordinance.” Rather, the injury is “the denial of

equal treatment resulting from the imposition of the barrier, not the ulti-

mate inability to obtain the benefit.” Id. at 666. “The injury in cases of this

kind is that a ‘discriminatory classification prevent[s] the plaintiff from

competing on an equal footing.” Adarand Constructors, Inc. v. Pena, 515

U.S.200, 211 (1995) (quoting Northeast Florida, 508 U.S. at 667) (alter-

ation in original); see also Bras v. California Public Utility Comm’n, 59

F.3d 869, 873 (9th Cir. 1995) (following this analysis). The injury suffered

by Oloyede and Habib is manifestly of this type. It would be strange to

construe the ADA as out of harmony with general antidiscrimination and

equal protection law.

16928 BATES v. UNITED PARCEL SERVICE

the business necessity test that deaf applicants as a group who

do not meet that requirement cannot drive package cars

safely. Unless UPS can establish a business necessity support-

ing such a blanket requirement, either by validating the appli-

cation of the DOT standard to deaf drivers or by adopting

some other validated standard for such drivers, it must allow

hearing impaired applicants to take the same initial driving

test, benefit from the same training program, and be subject

to the same final test as all other applicants, all with reason-

able accommodations if necessary.

This approach in no way compromises the safety of UPS’s

driving force, as there are other stages, after applicants are

deemed qualified to commence training, at which drivers,

including deaf drivers who cannot safely drive package

trucks, may be weeded out. If the final test, for example,

shows that a deaf applicant is fully capable of driving safely,

regardless of the extent of his hearing impairment, he should

not be disqualified from employment. If, however, it reveals

that an applicant’s hearing impairment results in an inability

to avoid accidents to the same extent as drivers without hear-

ing impairments, he should be deemed to have failed the test.

The key, accordingly, is to design a training and testing pro-

gram that will eliminate all applicants who pose a safety haz-

ard regardless of whether the cause is hearing impairment,

inadequate vision, lack of judgment, slow reflexes, lack of

intelligence, or some disability other than a hearing impair-

ment.

In this case, should the plaintiffs prevail and be allowed to

undergo the training program, UPS would be free to design a

test to be administered following its completion. By doing so,

it would test the ability of all potential employees, including

those who are hearing-impaired, to drive in a safe manner.

Oloyede and Habib would be allowed, if they pass the initial

driving test, to enroll in the training program and take the

final test upon its completion. Those who fail the testing and

training program for reasons related to their hearing impair-

BATES v. UNITED PARCEL SERVICE 16929

ment, would, of course, be entitled to challenge it on the

ground that it did not properly measure whether such employ-

ees could perform the essential functions of the position. But,

absent such a challenge, and absent UPS proof of the DOT

standard or some other hearing impairment standard as a busi-

ness necessity, plaintiffs and other deaf drivers would demon-

strate that they are safe drivers in the same manner as all other

employees who desire to be package car drivers.

As I read the district court’s opinion, it is consistent with

this basic approach. I would not, therefore, vacate the district

court’s holding on the “qualified individual” point.4

2.

The majority opinion holds, instead, that the district court

erred by not specifically examining whether Oloyede and

Habib are now capable of driving a package car safely, rather

than just whether they can drive safely enough to be eligible

for UPS’s package car driver assessment program. Maj. Op.

at 16911. Still, the majority opinion may not require signifi-

cantly more proof of Oloyede and Habib than they have

already adduced, except in one respect.

UPS does not decide whether participants in its training

program can drive a package car safely enough to meet UPS’s

risk standards until the end of the program. Instead, it uses the

entry requirements and the initial phases of the training

program— most notably, a driving test — to decide whether

applicants are, at a first cut, likely to be able to perform that

essential job function and so should be allowed to continue

training for the job. Surely, Oloyede and Habib, who have

4

The majority takes the same course while analyzing whether Oloyede

is a “qualified individual” under California’s Fair Employment and Hous-

ing Act (FEHA). Maj. Op. at 16920-23. I therefore also do not concur with

that section of the opinion, for the same reasons given here with regard to

the ADA.

16930 BATES v. UNITED PARCEL SERVICE

never driven package cars, are not required to show that they

are more able to perform the essential job function of ulti-

mately driving a package car safely than any other similarly

inexperienced UPS employee who successfully passes the ini-

tial screening for the training program. Instead, they must

simply be as qualified as hearing employees must be at that

initial stage. The majority’s description of its required eviden-

tiary showing suggests as much, as it would include meeting

UPS’s entrance requirements and tests, including “having a

clean driving record,” and “passing the driving test,” not

more. Id.

So, on remand, the district court may approach the quali-

fied individual inquiry under the majority opinion by deciding

whether the plaintiffs can show that they are likely to be able

to drive package cars as safely as other training program

entrants. The district court, on remand, may rely upon the evi-

dence already provided by Oloyede and Habib, or on any

other evidence they may introduce. Also, the district court

may order discovery on the UPS driving test given to program

entrants to allow Oloyede or Habib (or some other class repre-

sentative) to reconstruct and then take the same test. Members

of the class who meet all valid requirements and can pass that

test, with or without reasonable accommodations, would then

be as qualified to be package car drivers as other employees

entering the training program, and will meet their burden of

proof in this litigation.

To require the plaintiffs to show any more to meet their

burden of proof would be to suppose that UPS’s training pro-

gram is a useless formality in no way essential to teaching

strategies and skills necessary to drive package cars safely.

UPS obviously does not believe that, and neither should we.

As deaf potential drivers have not had the opportunity to learn

those skills and strategies, they cannot fairly be measured for

safety against drivers who have. And, there is no way poten-

tial deaf drivers can reproduce and prove that they can pass

a several-week program supervised by experienced UPS train-

BATES v. UNITED PARCEL SERVICE 16931

ers. So, as far as I can tell, deaf drivers should be able to show

they can drive a package car safely and so are “qualified per-

sons with a disability,” as the majority requires, simply by

passing a driving test equivalent to the one UPS requires to

enter its package car driver training program.

II.

The majority opinion is also somewhat unclear on how the

district court should review the evidence supporting UPS’s

business necessity defense of the DOT hearing standard. The

majority remands on this question, directing the district court

to give “some consideration” to the DOT’s use of the standard

for larger vehicles as evidence for business necessity. Maj.

Op. at 16920.

It appears to me that the district court has largely already

done so. It devoted several pages of careful analysis to

explaining the empirical and statistical deficiencies inherent

in extending the DOT hearing standard beyond the area in

which it now applies. It examined the studies supporting such

an extension, noting that the data supporting their conclusions

is “extremely dated,” that the studies used different defini-

tions and methodologies and so are not easily comparable,

and that the studies do not, themselves, tie the DOT hearing

standard to particular risk levels.

Nor do I think that Morton v. UPS, 272 F.3d 1249, 1264-65

(9th Cir. 2005) directed the district court simply to disregard

the evidentiary weight of the DOT hearing standard, as the

majority suggests. Morton held that the mere existence of the

standard “cannot shoulder UPS’s statutory burden because the

standard itself does not cover vehicles below its weight

threshold.” Id. at 1264. Instead, Morton directed the district

court to analyze the data supporting extending the DOT stan-

dard to non-DOT vehicles. Id. The district court in this case

did exactly that. Its analysis led it to conclude that the exten-

sion of the DOT hearing standard was not supportable under

16932 BATES v. UNITED PARCEL SERVICE

the version of the business necessity defense set forth in Mor-

ton.

In any event, the majority does not disapprove of the dis-

trict court’s factual findings on this point, and instead only

remands to the district court for it to consider the question

under the business necessity framework that the majority

opinion today enunciates. That directive is perfectly proper,

because it is possible — although, I suggest, not probable —

that the analysis will come out differently under the business

necessity standard as we enunciate it today. But nothing in the

majority opinion prevents the district court from examining in

that context the same methodological and empirical flaws it

previously discussed.

Those flaws may well be significant under today’s stan-

dard. As the majority demonstrates, “business necessity” is

not an easy hurdle for an employer to surmount, particularly

when using discriminatory employment tests or qualification

standards. As we have held in the Title VII context, “[a]s a

general principle, the greater the test’s adverse impact [on

protected individuals], the higher the correlation [between the

qualification standard and the essential functions of the job]

which will be required.” Clady v. County of Los Angeles, 770

F.2d 1421, 1432 (9th Cir. 1985). Here, UPS’s use of the DOT

hearing standard excludes, if not 100% of deaf individuals (as

a few may pass), then at least the vast majority of such indi-

viduals. Under our law, such a facially-discriminatory qualifi-

cation standard must be well-justified indeed. The district

court’s initial analysis demonstrates the thinness of the data

supporting UPS’s use of the DOT hearing standard. On

remand, the district court will have to decide whether the

business necessity framework, as described in the majority

opinion, can tolerate such serious impacts justified with such

scanty data.

Only if the district court decides that the DOT hearing stan-

dard is supported by business necessity could UPS use the

BATES v. UNITED PARCEL SERVICE 16933

hearing standard to exclude deaf individuals as a group. Any

other result would leave in place the barriers, based in group

stereotypes rather than in thoughtful individual consideration,

that the ADA seeks to root out of American society.

* * * * *

With these comments, I concur in Parts I, II, III(A)-(C)(1),

III(D), III(E), IV(B), and V of the majority opinion, and in the

judgment.