I know, I know, another link from SFGate. I promise, I do read other publications but this is my hometown newspaper and since I read it everyday, I find lots about the 9th Circuit here.
That being said, the above mentioned court has determined that Judge Thelton Henderson had used the wrong standard in deciding a case in which UPS was allegedly discriminating against deaf individuals applying for commercial driving jobs.
Henderson allowed the plaintiffs to show that they were qualified for the jobs based on their driving records, and failed to require them to show that they were capable of driving delivery trucks, the court said. The court didn’t say how that should be done, but stressed that it was still up to the company to prove its policy is a legitimate safety measure.
UPS, the world’s largest private package carrier, called the ruling “a victory for public safety.” But a lawyer for hundreds of deaf and hard-of-hearing employees described it as a minor setback and predicted that Henderson would reach the same conclusion after a new trial.
The dispute involves trucks weighing 10,000 pounds or less, which account for about 9 percent of the Atlanta company’s fleet of 65,000 delivery vehicles. U.S. Department of Transportation regulations set hearing standards for drivers of trucks weighing more than 10,000 pounds, but UPS applies the same standards to its smaller vehicles.
A nationwide class-action lawsuit, filed in 1999, accused UPS of violating the Americans with Disabilities Act. In its defense, the company argued that deaf drivers were more likely to get into accidents because they could not hear sirens, screeching tires or other danger signals.
After a non-jury trial, Henderson ruled in October 2004 that UPS must allow deaf employees to apply for promotions to drivers’ jobs and enroll in the company’s driver training program.
he judge said the company had failed to show that the deaf were inherently unable to drive safely or communicate with the public. He said studies on driver safety records were inconclusive, but there was evidence that some deaf drivers could compensate by being extra alert to visual cues and by using additional mirrors and other devices.
In Friday’s ruling, the appellate court rejected arguments by UPS that the federal standards should be considered safety measures for all commercial drivers, or that the plaintiffs should have to show that those standards were unreasonable. But the court majority, led by Judge Margaret McKeown, said Henderson should have required deaf employees to show that they were capable of driving delivery trucks before forcing UPS to justify its policy.
The plaintiffs’ lawyer, Laurence Paradis of Disability Rights Advocates in Berkeley, said his clients should be able to comply with the ruling by producing a deaf employee who can pass UPS’ preliminary driving test in a delivery vehicle, or an equivalent test designed by experts.
“There are deaf people driving post office vehicles all over the country,” as well as SUVs and other vehicles as heavy as the UPS trucks, Paradis said. “It’s a bit of a delay, but we’re still confident the final outcome will be the same.”
UPS said the ruling “recognizes the importance of safe driving, and recognizes that employers like UPS may employ reasonable safety standards. We are confident that UPS’ safety-based policies will withstand any additional legal challenges.”
It sounds like there may be an amicable solution here. At least I hope so.