Reasonable Accommodations: Deaf Employee Who Was Turned Down For Driver Job Can Sue; Defenses To Accommodation Claims

Under federal Department of Transportation rules, professional drivers who operate vehicles weighing more than 10,000 pounds must be DOT certified. United Parcel Service had a policy of only hiring individuals for driving positions who had this certification. Based on this rule, UPS turned down an employee who couldn’t meet DOT standards because she was deaf. Now, the Ninth Circuit Court of Appeals has given the employee the green light to sue. The decision explores a number of employer defenses to a failure-to-accommodate claim.

Work Assignment System

UPS drivers bid on fixed routes based on seniority. The least senior drivers work as unassigned or “swing” drivers until they accrue sufficient seniority to bid on a fixed route. Swing drivers handle over-flow work and fill in on assigned routes when the regular drivers are absent. When there’s not enough driving work, UPS assigns swing drivers to other duties such as warehouse work.

Of the 254 fixed routes in the Phoenix, Ariz. area, only 14 were served by non-DOT vehicles. The routes that use these smaller trucks weighing 10,000 pounds or less are generally more rural and considered more desirable by senior drivers. Thus, it’s difficult for newer drivers to successfully bid on them. UPS also operates 33 other non-DOT trucks, some as backup vehicles and others used by swing drivers for overflow work. Routes and vehicles assigned to particular routes may be modified from day to day to meet delivery needs.

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Deaf Applicant Turned Down

Jana Morton, a UPS warehouse employee in Phoenix, applied for a promotion to be a driver. She passed UPS’s driving and written tests but lost out because she couldn’t obtain DOT certification due to her hearing impairment.

Morton requested that UPS accommodate her by permitting her to drive non-DOT vehicles. Her request was denied because UPS requires all drivers to be DOT certified.

Lawsuit Ensues

Morton sued, charging that UPS violated the Americans with Disabilities Act. UPS conceded that it refused to promote Morton solely because of her hearing impairment. However, the company argued, its actions were appropriate for several reasons: the requested accommodation conflicted with union contract seniority provisions; the ability to drive DOT-certified vehicles was an essential job function; employing only DOT-certified drivers was a legitimate, safety-related policy; and the accommodation would be an undue hardship.

Court Evaluates Defenses

The Ninth Circuit, which covers California, has now given Morton the go-ahead to take her case to a jury. Here’s what the court said about UPS’s defenses:

1. Union contract seniority provisions. The court agreed that assigning Morton to a coveted route where a non-DOT vehicle is used would violate the union contract seniority provisions. But the union agreement didn’t limit UPS’s authority to assign vehicles. UPS could have employed Morton as a swing driver and structured her assignments to avoid DOT vehicles.

    

2. Essential job function. The court said that a jury could find that a swing driver without DOT certification could perform the essential driver job functions with an accommodation. For example, swing drivers were routinely assigned to overflow work, using only non-DOT vehicles, or they could displace part-time warehouse workers when driving work was low.

    

3. Legitimate safety-related reason. The ADA typically requires an assessment of an applicant’s ability to perform the job. In rare cases, however, an employer can justify an across-the-board qualification standard for disabled applicants by demonstrating: a) a strong correlation between the standard and safe job performance; b) the necessity of across-the-board rather than individualized determinations; and c) that no reasonable accommodation would permit the applicant to meet the standard. At trial, to demonstrate the validity of requiring all drivers to be DOT certified, UPS will have to show that substantially all deaf drivers pose a higher risk of accidents and that there are no practical criteria for determining which deaf drivers present a heightened risk.

    

4. Undue hardship. Determining whether Morton’s proposed accommodation would represent an undue hardship for UPS was an issue for a jury to decide, said the court. UPS will have to demonstrate that the expense of accommodating Morton is burdensome in light of the company’s size and resources.

Practical Impact

It can be difficult to establish the various employer defenses to a disabled employee’s claim that you failed to reasonably accommodate them. Therefore, it’s critical to thoroughly evaluate the particular facts and circumstances to determine whether you must provide an accommodation and consult with the disabled employee to see if an accommodation can be worked out. Note that under a California law that took effect last year, you can be sued for not discussing an accommodation with a disabled employee or applicant who requests one. This is true even if it turns out that no appropriate accommodation is available for the person.