October 10, 2006
Court: UPS Discriminated Against Deaf
By DAVID KRAVETS AP Legal Affairs Writer
© 2006 The Associated Press
SAN FRANCISCO — A federal appeals court on Tuesday upheld a lower court ruling that UPS Inc. violated anti-discrimination laws by automatically barring the deaf and hearing-impaired from driving parcel delivery trucks.
The 9th U.S. Circuit Court of Appeals agreed with U.S. District Judge Thelton Henderson’s 2004 ruling that the Atlanta-based company’s practices breach the Americans with Disabilities Act.
Henderson, in a class-action case representing as many as 1,000 would-be drivers, ruled that the hearing impaired should “be given the same opportunities that a hearing applicant would be given to show that they can perform the job of package-car driver safely and effectively.” The San Francisco federal court order was stayed pending appeal.
On appeal, UPS maintained its hiring practice was a safety issue and it was not discriminating.
“UPS strongly disagrees with the court’s ruling and we are evaluating our options, including an appeal,” company spokesman Norman Black said. “We believe this case is about safety. It has nothing to do with disability or discrimination.”
The appeals court, however, said UPS had no right to automatically disqualify deaf or hearing impaired drivers.
“While UPS offered anecdotal testimony involving situations where a driver avoided an accident because he or she heard a warning sound, the company … failed to show that those accidents would not also have been avoided by a deaf driver who was compensated for his or her loss of hearing by, for example, adapting modified driving techniques or using compensatory devices such as backing cameras or additional mirrors,” Judge Marsha Berzon wrote for a three-judge panel of the appeals court.
The case was litigated by Disability Rights Advocates who represented current and former employees who were passed over for driving positions, and other potential employees who consented to what the group dubbed UPS’s “deaf-need-not-apply” policy.
“We are obviously ecstatic over the ruling,” said attorney Todd Schneider, who worked with the Berkeley-based plaintiffs’ group on the case.
“Each deaf person has to be assessed individually to make a determination, just like a hearing person, as to whether they can safely drive a UPS truck,” he added. “That’s all we ever asked.”
The dispute centered on UPS’s custom of denying hearing-impaired workers jobs operating delivery trucks weighing under 10,000 pounds.
Federal rules demand that trucks exceeding 10,000 pounds be staffed by those meeting certain vision and hearing requirements. But the government leaves it up to companies to decide who is qualified to operate lighter vehicles.
The U.S. Postal Service and FedEx Corp. allow some deaf drivers to operate delivery vehicles under 10,000 pounds.
In 2003, under a $10 million settlement, UPS agreed to track promotions and ensure that hearing-impaired employees and job applicants have access to certified interpreters. The company also agreed to provide text telephones and vibrating pagers to alert poor-hearing employees to emergency evacuations.
That settlement resolved all issues in the case except the truck driving dispute.
The case is Bates v. UPS Inc., 04-17295.
Editors: David Kravets has been covering state and federal courts for more than a decade.
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