The Fifth Circuit Court recently ruled on an Americans With Disabilities Act (ADA) discrimination case filed by a part-time UPS warehouse worker who was denied employment as a package car driver. The Court's ruling — in favor of the worker — could have significant implications for employers who set stringent qualification standards or want to extend government safety standards beyond their intended scope.

The employee was severely hearing impaired, i.e., hearing tests rated her “profoundly deaf.” UPS denied her request for a driving job because she could not meet DOT's hearing qualification standards. She sued UPS under the provisions of ADA because she was applying for a position to drive a “non-DOT regulated” vehicle, which means a GVW of less than 10,000 lb., claiming that UPS failed to accommodate her disability. However, UPS requires that all of its drivers meet the more stringent DOT qualification standards.

A lower court sided with the UPS request to dismiss the suit on the basis that such an accommodation — to give the woman a position driving only non-DOT-regulated vehicles would violate the terms of the company's collective bargaining agreement with the Teamsters.

According to the contract, union employees were awarded regular “bid runs” on these vehicles based on seniority. The runs are considered desirable because they are often used on rural routes that have fewer stops and fewer packages per stop.

UPS also argued that employing only DOT-certified drivers is a safety-related decision.

However, in reversing the lower court's decision, the Circuit Court said that prior to denying employment to disabled individuals, a company must prove: 1) that substantially all such disabled employees cannot perform the job safely; and 2) that non-DOT vehicles pose a sufficient safety risk to warrant application of the DOT standards.

On the first point, UPS presented research demonstrating that deaf male passenger-car drivers were involved in approximately 1.8 times as many accidents as their non-deaf counterparts. The Circuit Court rejected this argument because it did not address female drivers.

In fact, the Court pointed out that the research actually demonstrated no difference in the accident rates of deaf and non-deaf female drivers. UPS countered that the size of the female sample in the study was too small to draw a valid conclusion.

As to the second point, the Circuit Court cited a 1988 DOT ruling in which the agency declined to extend safety standards to vehicles less than 10,000-lb. GVW. The Court also said that UPS failed to address the question of whether it was possible or practical to determine which deaf employees were less safe than others.

Unless the Supreme Court reverses this decision, the Circuit Court's ruling sets an important precedent by not allowing a company to institute safety standards that are more stringent that those set by DOT.

I've long advocated that operators of light- and medium-duty vehicles be required to obtain CDLs. This ruling, however, could adversely impact that from ever becoming a reality. It's important to note that the Circuit Court did not call into question other UPS qualification standards, such as not having more than three moving violations in a 36-mo. period.

A transportation company's ability to set such safety standards is crucial. The crux of the Court's decision may affect whether any of your current or proposed standards are, in fact, a reasonably necessary and central requirement of the job.

I suggest you examine your qualification standards and determine whether they can pass the two tests reviewed by the Court. Also consider the larger question: Would you rather defend yourself against an ADA discrimination lawsuit that arises as a result of your stringent safety standards, or defend yourself against a negligence retention lawsuit that arises out of standards that are too lenient?




Jim York is the manager of Zurich North America's Risk Engineering Team, based in Schaumburg, IL.