NEWS RELEASE
FOR IMMEDIATE RELEASE
June 16, 2009
CONTACTS:
Larry Paradis
Disability Rights Advocates
510-541-4459
510-665-8644
Todd Schneider
Schneider Wallace Cottrell Brayton Konecky, LLP
415-421-7100
DEAF AND HEARING IMPAIRED EMPLOYEES SETTLE
CLASS ACTION LAWSUIT WITH UPS
Disability Rights Advocates, a non-profit legal center based in
Berkeley, California together with the civil rights firm Schneider
Wallace Cottrell Brayton Konecky, LLP, have reached a proposed
settlement in a long-running class action lawsuit with United Parcel
Service, Inc., the world’s largest package delivery company. The suit
challenged the company’s use of a Department of Transportation (“DOT”)
hearing standard as a threshold requirement for all driving positions
at the company. Plaintiffs alleged that UPS could not require
applicants for driving positions to pass the DOT standard when the job
involved driving a vehicle weighing less than 10,000 pounds. UPS
asserted that its use of the DOT standard was lawful due to the
similar operating characteristics of its vehicles weighing above and
below 10,000 pounds. Vehicles weighing 10,000 pounds or less are not
subject to DOT regulations. Drivers of vehicles weighing more than
10,000 pounds are required by federal law to pass the DOT hearing
standard.
The lawsuit, filed in 1999, was certified by a federal court as a
class action in 2001. A trial in 2003 resulted in a court order
enjoining UPS from continued use of the DOT hearing standard. A
three-judge panel of the Ninth Circuit upheld the injunction, but an
en banc panel of the Ninth Circuit reversed, sending the case back to
the trial court for further litigation in December 2007.
The proposed settlement creates a Hearing Protocol that will be made
available to all UPS employees and applicants with hearing impairments
who cannot pass the DOT hearing standard but are otherwise qualified
for a driving position. UPS will administer the protocol in the same
manner and with the same safeguards as the company administers its
protocols for vision-impaired and insulin-dependent drivers.
The Hearing Protocol provides otherwise qualified applicants for
on-road driving positions who do not pass the DOT hearing standard
with audiometric testing and an alternative hearing standard. Those
who qualify under the Protocol will participate in UPS’s
industry-leading driver training program in a vehicles weighing less
than 10,000 pounds. UPS managers providing driver training as part of
the Protocol will be specially trained to ensure effective
communication throughout the training process. Participants in the
Hearing Protocol will also be regularly screened to monitor for
changes in hearing loss.
Larry Paradis, Executive Director of Disability Rights Advocates
expressed satisfaction with the settlement. “This case raised
difficult issues that both the parties and the courts, including the
Ninth Circuit, grappled with over the years. In the end, we struck a
balance and worked with UPS to develop a compromise that serves the
needs of both UPS and the class. We look forward to the Protocol’s
implementation.” Class attorney Todd Schneider echoed those
sentiments. “This first of its kind class action on behalf of deaf and
hearing impaired employees broke new ground and made new law. I’m
pleased the settlement is going to give class members an opportunity
for advancement at UPS that they would not have otherwise had.”
“UPS remains committed to treating our employees with disabilities,
including those with hearing impairments, fairly, while maintaining
our unwavering commitment to public safety,” commented Gerry Eaker,
UPS Fleet Safety Manager. “The Hearing Protocol that is part of this
agreement allows us to achieve both goals simultaneously.”
An expert panel composed of experts in the fields of audiology,
otology and otolaryngology, UPS employees, and a retired jurist of the
California Supreme Court developed the parameters of the Hearing
Protocol.
A Preliminary Approval hearing will be held before the Honorable
Thelton E. Henderson on June 29, 2009 at 10:00 a.m. in San Francisco’s
federal courthouse. The case is Bates et al., v. United Parcel
Service, Inc., C 99-2216 (TEH).