The ADA's business necessity defense

The Ninth Circuit Court of Appeals, sitting en banc, in Bates v. United Parcel Service, Inc., re-visited the issue of the business necessity defense and an employer’s safety-based qualification requirements. The court ruled that a government safety rule that does not apply directly to the job at issue but is nonetheless related to the job’s requirements can be considered when determining whether the employer’s safety requirement is proper or discriminatory. 

In this case, UPS had a rule that required all package car drivers to meet a U.S. Department of Transportation (“DOT”) hearing standard. The DOT standard, however, applied only to drivers of trucks over 10,000 pounds gross vehicle weight. UPS applied the rule to all drivers, a rule that was discriminatory on its face.

A class of hearing impaired potential drivers challenged the rule. The trial court found for the plaintiffs, but the Court of Appeals, en banc, reversed and remanded for further proceedings in light of its “clarification” of the law.

The question was whether UPS’s action was defensible under the business necessity rule. “It may be a defense to a charge of discrimination . . . that an alleged application of qualification standards . . . has been shown to be job-related and consistent with business necessity, and that such performance cannot be accomplished by reasonable accommodations. . . .” 42 U.S.C. § 12113(a).  As an initial matter, the employer has the burden of proving what are the essential functions of the job (in distinction from qualification standards). The employee then must show he can perform the essential functions. If so, then the issue turns to whether the qualification standard (the DOT hearing requirement) satisfies the business necessity rule, a matter the employer must prove.

UPS had to prove the connection between hearing at the employer-adopted DOT standard and the essential function of driving a package truck safely.  “[W]hen 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 disability, the employer – not the employee – bears the burden of showing that the higher qualification standard is job-related and consistent with business necessity, and that performance cannot be achieved through reasonable accommodation.” Bates, slip. op. at 16909-910. Thus, to prevail on the business necessity defense, the employer must show the standard is: job-related; consistent with business necessity; and reasonable accommodations are not possible. The burden was on UPS to prove its contention – that, in order to be a safe driver, the employee must meet the hearing qualification; the employee did not need to disprove UPS’s position.

In reading this conclusion, the Bates decision repudiated a previous 9th Circuit case that imported the concept of bona-fide occupational qualification into ADA claims. And, in the end, this distinction is the needed “clarification” noted above that required an en banc decision.