No. 04-17295 ________________________________________________________

IN THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

________________________________________________________

ERIC BATES, ET AL.,

Plaintiffs-Appellees,

v.

UNITED PARCEL SERVICE, INC.,

Defendant-Appellant. ________________________________________________________

On Appeal from The United States District Court

For The Northern District of California ________________________________________________________

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL IN SUPPORT OF DEFENDANT-APPELLANT

AND IN SUPPORT OF REVERSAL ________________________________________________________

Ann Elizabeth Reesman McGuiness Norris & Williams, LLP 1015 Fifteenth Street, N.W. Suite 1200 Washington, DC 20005 (202) 789-8600 Attorneys for Amicus Curiae Equal Employment Advisory Council

March 14, 2005

CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. Rules 26.1 and 29(c), Amicus Curiae Equal

Employment Advisory Council provides the following corporate disclosure

statement:

1. The Equal Employment Advisory Council has no parent

corporations and no subsidiary corporations.

2. No publicly held company owns 10% or more stock in

the Equal Employment Advisory Council.

Respectfully submitted:

______________________________ Ann Elizabeth Reesman McGuiness Norris & WIlliams, LLP 1015 Fifteenth St., N.W. Suite 1200 Washington, DC 20005 (202) 789-8600

Attorneys for Amicus Curiae Equal Employment Advisory Council

March 14, 2005

TABLE OF CONTENTS TABLE OF AUTHORITIES.................................................................................iii INTEREST OF THE AMICUS CURIAE................................................................1 STATEMENT OF THE CASE..............................................................................3 SUMMARY OF ARGUMENT .............................................................................5 ARGUMENT .......................................................................................................7 I. THE ADA PERMITS EMPLOYERS TO USE SAFETY-BASED, JOB-

RELATED QUALIFICATION STANDARDS THAT ARE JOB RELATED AND CONSISTENT WITH BUSINESS NECESSITY ...............................7

A. The Capacity To Perform a Job Without Causing or Incurring

Serious Injury or Death Is a Fundamental Qualification ............7 B. The Statutory Language Explicitly Permits Employers To Use

“Job-Related” Qualification Standards, Which Necessarily Include Safety-Based Standards................................................9

1. The ADA Specifically Authorizes Qualification

Standards That Are Job-Related and Consistent with Business Necessity ........................................................9

2. Employers May Use Qualification Standards That Are

Not Government Mandates ............................................12

C. Public Policy Dictates That Employers Be Permitted To Develop and Apply Adequate Standards To Protect the Safety of the Public ............................................................................16

II. THE DISTRICT COURT’S DECISION EFFECTIVELY NEGATES THE

“BUSINESS NECESSITY” DEFENSE ......................................................18 CONCLUSION....................................................................................................23

ii

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

iii

TABLE OF AUTHORITIES

FEDERAL CASES Albertson's, Inc. v. Kirkingburg , 527 U.S. 555 (1999) ........................................ 12

Donahue v. Consolidated Rail Corp., 224 F.3d 226 (3d Cir. 2000)........................8

EEOC v. Amego, Inc., 110 F.3d 135 (1st Cir. 1997)..............................................8

Leonberger v. Martin Marietta Materials, Inc. , 231 F.3d 396 (7th Cir. 2000) ........9

McKenzie v. Benton, 388 F.3d 1342 (10th Cir. 2004)............................................8

Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir. 2001) ..........passim

Myers v. Hose, 50 F.3d 278 (4th Cir. 1995)..........................................................8

Shannon v. New York City Transit Authority, 332 F.3d 95 (2d Cir. 2003)...6, 15, 17

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) ...........................................9

Watson v. City of Miami Beach , 177 F.3d 932 (11th Cir. 1999)........................... 16

FEDERAL STATUTES Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ...................... 18 Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793 ............................1 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ............................7 Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12111-12117 ...passim 42 U.S.C. § 12111(8) .....................................................................................7 42 U.S.C. § 12112(a) ................................................................................. 5, 7 42 U.S.C. § 12112(b)(6)........................................................................... 6, 10

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42 U.S.C. § 12112(d)(4)(A).......................................................................... 14 42 U.S.C. § 12113(a) ............................................................................... 6, 11 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq................... 18 49 U.S.C. § 31132(1)(A).....................................................................................3

FEDERAL REGULATIONS 45 C.F.R. § 84.3(k)(1).........................................................................................7 45 C.F.R. pt. 84, App. A(a)(5).............................................................................7 49 C.F.R. § 391.41(b)(11)............................................................................... 3, 4

LEGISLATIVE HISTORY H.R. Conf. Rep. No. 101-596 (1990), reprinted in 1990 U.S.C.C.A.N. 565... 13, 15 H.R. Rep. No. 101-485, pt. 2 (1990), reprinted in 1990 U.S.C.C.A.N. 303 .................................................................................................... 7, 11, 12, 14 H.R. Rep. No. 101-485, pt. 3 (1990), reprinted in 1990 U.S.C.C.A.N. 445 ......................................................................................................7, 8, 12, 13 S. Rep. No. 101-116 .......................................................................... 7, 11, 12, 13

The Equal Employment Advisory Council respectfully submits this brief

amicus curiae with the consent of all parties. The brief supports reversal of the

decision below and thus supports the position of Defendant-Appellant United

Parcel Service, Inc., before this Court.

INTEREST OF THE AMICUS CURIAE

The Equal Employment Advisory Council (EEAC) is a nationwide

association of employers organized in 1976 to promote sound approaches to the

elimination of discriminatory employment practices. Its membership now includes

approximately 330 of the nation’s largest private sector companies, collectively

providing employment to more than 20 million people throughout the United

States. EEAC’s directors and officers include many of industry’s leading experts

in the field of equal employment opportunity. Their combined experience gives

EEAC an unmatched depth of knowledge of the practical, as well as legal,

considerations relevant to the proper interpretation and application of equal

employment policies and requirements. EEAC’s members are firmly committed to

the principles of nondiscrimination and equal employment opportunity.

All of EEAC’s member companies are employers subject to Title I of the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111–12117. Moreover,

many members are federal contractors subject to Section 503 of the Rehabilitation

Act of 1973, 29 U.S.C. § 793, which requires covered employers to take

2

affirmative action to employ and advance in employment qualified individuals

with disabilities.

EEAC’s members include chemical and other manufacturing companies, oil

refineries, airlines, pharmaceutical manufacturers, railroads, health care providers,

nuclear power companies, defense contractors, and many others. Many if not all of

these companies have adopted safety-based qualification standards addressing the

risks presented by the work environment. These standards are grounded in such

legitimate business considerations as the need to prevent workers from killing or

injuring themselves, coworkers or members of the general public. They can – and

sometimes will – screen out some individuals with disabilities because of potential

hazards formed by the combination of particular aspects of the disability and some

factor or factors in the work environment.

Thus, EEAC’s members have a direct interest in the issue presented in this

case – whether the ADA permits an employer to impose a safety-based

qualification standard that is job-related and consistent with business necessity

even though it may screen out one or more individuals with disabilities. The court

below ruled that the hearing standard used by UPS to select package car drivers

violated the ADA because it screened out qualified individuals with hearing-

related disabilities and was not justified by UPS’s “business necessity” defense.

The district court’s interpretation of the terms “qualified” and its unattainable view

3

of “business necessity” will cause immense difficulties for any employer using

safety-based qualification standards.

EEAC seeks to assist the Court by highlighting the impact its decision in this

case may have beyond the immediate concerns of the parties.

STATEMENT OF THE CASE

United Parcel Services, Inc. (UPS) is a worldwide package transportation

and delivery company. Bates v. United Parcel Service, Inc., 2004 WL 2370633, at

*2, 16 A.D. Cas. (BNA) 205, 208 (N.D. Cal. Oct. 21, 2004). Of the company’s

more than 320,000 domestic employees, more than 70,000 are “package car

drivers” who pick up and deliver packages in the “familiar brown trucks.” Id. An

October 2003 inventory showed that UPS had 65,198 vehicles in its fleet, all but

5902 of which weigh more than 10,000 pounds. Id. at *3, 16 A.D. Cas. (BNA) at

209. Those somewhat smaller trucks, weigh no less than three and one-half tons,

and many weigh over four tons. Id.

The federal Department of Transportation (DOT) hearing standard bars

certain hearing impaired individuals from driving commercial vehicles weighing

more than 10,000 pounds. 49 U.S.C. § 31132(1)(A); 49 C.F.R. § 391.41(b)(11).1

1 The DOT standard provides that “[a] person is physically qualified to drive a commercial motor vehicle if that person . . . [f]irst perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss

4

United Parcel Service (UPS) requires all of its package car drivers to pass this

standard. Bates, at *1, 16 A.D. Cas. (BNA) at 207.

Plaintiffs, who are hearing impaired, sued UPS under Title I of the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111–12117, and

California law on behalf of themselves and other similarly situated hearing

impaired individuals, claiming discrimination in promotions and failure to

accommodate, as well as challenging UPS’s use of the DOT standard. In 2001, the

trial court certified a nationwide class consisting of everyone who (i) has been

employed or applied for employment with UPS since June 25, 1997; (ii) uses sign

language as a primary means of communication due to a hearing loss or limitation;

and (iii) alleges that their rights have been violated under the ADA due to UPS’s

policies and procedures. 204 F.R.D. 440 (N.D. Cal. 2001). The case went to trial

without a jury in 2003. During the course of the trial, the parties settled the

promotions and accommodations claims, and the trial continued on the DOT

standard issue. Bates at *2, 16 A.D. Cas. (BNA) at 208.

In October 2004, the trial judge issued his findings of fact and conclusions

of law, ruling that UPS’s use of the DOT standard to select package car drivers

violated the ADA. Bates at *1, 16 A.D. Cas. (BNA) at 207. According to the trial

in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid . . . .” 49 C.F.R. § 391.41(b)(11).

5

judge, the plaintiffs met their initial burden of proving that they were “qualified,”

as the ADA uses that term, by alleging that because UPS has a qualification

standard that screens out all deaf individuals, by definition it would exclude deaf

individuals who could perform essential functions of the job, and by identifying

two individual plaintiffs who, in the judge’s view, were qualified for the job but for

their hearing impairment. Then, the judge rejected UPS’s “business necessity”

defense, having adopted standards for establishing that defense that would be

difficult if not impossible to meet.

The judge issued an injunction preventing the company from using the DOT

standard in the future and ordering UPS to conduct an individualized assessment of

each applicant’s ability to become a package-car driver, including reasonable

accommodations. In essence, the trial judge required the company to invent some

currently nonexistent reliable method of determining whether a deaf applicant can

drive a UPS package car safely. The judge ordered the parties to confer as to the

second phase of the case, which will address damages and other individual

remedies. At UPS’s request, the court then stayed the entire case pending appeal.

SUMMARY OF ARGUMENT

Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111-

12117, prohibits discrimination in employment against a “qualified individual with

a disability” because of the disability. 42 U.S.C. § 12112(a) (emphasis added).

6

The most elemental qualification for a job is being able to perform its essential

functions, whatever they may be, without seriously injuring or killing oneself, a co-

worker, or members of the public. Accordingly, the ADA expressly permits

employers to use qualification standards and other selection criteria that are “job-

related” and “consistent with business necessity” even if they tend to screen out

individuals with disabilities. 42 U.S.C. § 12112(b)(6); 42 U.S.C. § 12113(a).

These qualification standards may be of the employer’s own devising; they need

not be government mandates. Shannon v. New York City Transit Authority, 332

F.3d 95 (2d Cir. 2003).

Public policy dictates that employers be permitted to develop and apply

adequate standards to protect the safety of the public. It is difficult to believe that

Congress through passage of the ADA intended to discourage the development of

safety standards in the workplace. A ruling that effectively prevents employers

from setting safety-based qualification standards that are job-related and consistent

with business necessity to compare qualified applicants or employees could

achieve just such a result.

The district court ’s decision effectively negates the “business necessity”

defense. As the district court interpreted this Court’s decision in Morton v. United

Parcel Service, 272 F.3d 1249 (9th Cir. 2001), it is difficult to conceive of a safety-

based qualification standard that could pass the test.

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ARGUMENT

I. THE ADA PERMITS EMPLOYERS TO USE SAFETY-BASED, JOB-RELATED QUALIFICATION STANDARDS THAT ARE JOB RELATED AND CONSISTENT WITH BUSINESS NECESSITY

A. The Capacity To Perform a Job Without Causing or

Incurring Serious Injury or Death Is a Fundamental Qualification

Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111-

12117, prohibits discrimination in employment against a “qualified individual with

a disability” because of the disability. 42 U.S.C. § 12112(a) (emphasis added). It

defines “qualified individual with a disability” as “an individual with a disability

who, with or without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds or desires.”

42 U.S.C. § 12111(8) (emphasis added).2 The statute is explicit that the

employer’s judgment as to what job functions are essential must be considered in

making this determination. Id.

2 The ADA does not define the term “essential functions.” The concept derives from the regulations issued under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. See, e.g., 45 C.F.R. § 84.3(k)(1). When the Department of Health and Human Services issued the Section 504 regulations, it explained that this term was used to emphasize that “handicapped persons should not be disqualified simply because they may have difficulty in performing tasks that bear only a marginal relationship to a particular job.” 45 C.F.R. pt. 84, App. A(a)(5) (emphasis added). The Committee Reports on the ADA similarly characterize “essential” functions as being “not marginal.” S. Rep. No. 101-116, at 26 (1989) (Senate Labor Committee); H.R. Rep. No. 101-485, pt. 2, at 55 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 337 (House Education and Labor Committee); H.R. Rep.

8

The most elemental qualification for a job is being able to perform its

essential functions, whatever they may be, without seriously injuring or killing

oneself, a co-worker, or members of the public. An individual may have the

physical capabilities to do each of a job’s individual tasks yet still not be

“qualified” for the job, because he cannot do it safely. See, e.g., McKenzie v.

Benton, 388 F.3d 1342, 1355 (10th Cir. 2004) (noting that “[t]he job qualifications

[of a former deputy sheriff with mental disability] here properly included the

essential function of performing [her] duties without endangering her co-workers

or members of the public with whom she came in contact”); Donahue v.

Consolidated Rail Corp., 224 F.3d 226, 231 (3d Cir. 2000) (holding that

employing a train dispatcher whose medical condition caused him to pass out

unexpectedly posed a “significant risk” to others); EEOC v. Amego, Inc., 110 F.3d

135, 144 (1st Cir. 1997) (holding that “in a Title I ADA case, it is the plaintiff’s

burden to show that he or she can perform the essential functions of the job, and is

therefore ‘qualified.’ Where those essential job functions necessarily implicate the

safety of others, plaintiff must demonstrate that she can perform those functions in

a way that does not endanger others”); Myers v. Hose, 50 F.3d 278, 282 (4th Cir.

1995) (holding that an individual with uncontrolled diabetes was “unable to

No. 101-485, pt. 3, at 33 (1999), reprinted in 1990 U.S.C.C.A.N. 445, 455-56 (House Judiciary Committee).

9

perform the essential functions required by a bus driver. The basic function of a

bus driver is to operate his motor vehicle in a timely, responsible fashion. It is

essential that a driver perform these duties in a way that does not threaten the

safety of his passengers or of other motorists”).

In each of these cases, the employee was physically capable, in the most

basic sense, of doing the tasks associated with the job in question, but could not do

it safely. Cf. Leonberger v. Martin Marietta Materials, Inc., 231 F.3d 396, 399

(7th Cir. 2000) (upholding summary judgment for employer who discharged front

loader operator with sleep apnea, noting that “an employee who is less than fully

alert could harm himself and others if he is operating a front loader, or many other

kinds of heavy industrial equipment”). Accordingly, whatever the particular tasks

required by a job, it is an essential qualification to be able to perform them safely.

B. The Statutory Language Explicitly Permits Employers To Use “Job-Related” Qualification Standards, Which Necessarily Include Safety-Based Standards

1. The ADA Specifically Authorizes Qualification

Standards That Are Job-Related and Consistent with Business Necessity

Employer safety standards designed to preserve the health and safety of the

individual employee, other employees and the public are necessarily “qualification

standards” under the ADA. Cf. Sutton v. United Air Lines, Inc., 527 U.S. 471, 490

(1999) (“By its terms, the ADA allows employers to prefer some physical

10

attributes over others and to establish physical criteria”). Indeed, the ADA states

twice that employers may use qualification standards and other selection criteria

that are “job-related” and “consistent with business necessity” even if they tend to

screen out individuals with disabilities.

First, Section 102(b) of the ADA, which defines the term “discriminate” as

used in the general prohibition of Section 102(a), states in relevant part that:

(b) CONSTRUCTION-As used in subsection (a), the term “discriminate” includes—

(6) using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.

42 U.S.C. § 12112(b)(6) (emphasis added). Thus, the very statutory provision

raising the possibility that a qualification standard or selection criterion might

discriminate on the basis of disability also expressly recognizes the legitimacy of

such a standard or criterion if it “is shown to be job-related for the position in

question and is consistent with business necessity.” Id.

Second, the statute provides a defense in much the same terms, stating:

IN GENERAL—It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business

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necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this subchapter.

42 U.S.C. § 12113(a) (emphasis added). The inclusion of this defense makes it

doubly clear that qualification standards or selection criteria that are “job-related”

and “consistent with business necessity” are permissible under the ADA even if

they screen out individuals with disabilities.

The legislative history of the ADA confirms that “business necessity” can

justify qualification standards that establish physical job criteria. Both

congressional committees with direct authority over this part of the legislation, the

Senate Committee on Labor and Human Resources and the House Committee on

Education and Labor, made this point.

Under this legislation an employer may still devise physical and other job criteria and tests for a job so long as the criteria or tests are job-related and consistent with business necessity. Thus, for example, an employer can adopt a physical criterion that an applicant be able to lift fifty pounds, if that ability is necessary to an individual’s ability to perform the essential functions of the job in question.

S. Rep. No. 101-116, at 27 (1989). See also H.R. Rep. No. 101-485, pt. 2, at 56

(1990), reprinted in 1990 U.S.C.C.A.N. 303, 338. Both committees explained this

provision as a “requirement that job criteria actually measure ability required by

the job” to guard against employment decisions based on “stereotypes and

misconceptions about the abilities, or more correctly the inabilities, of persons with

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disabilities . . . .” S. Rep. No. 101-116, at 37 (1989); H.R. Rep. No. 101-485, pt. 2,

at 71 (1990), reprinted in 1990 U.S.C.C.A.N. at 353. They explained:

If a person with a disability applies for a job and meets all selection criteria except one that he or she cannot meet because of a disability, the criterion must concern an essential, non-marginal aspect of the job, and be carefully tailored to measure the person’s actual ability to do an essential function of the job. If the criteria meets this test, it is nondiscriminatory on its face and it is otherwise lawful under the legislation.

S. Rep. No. 101-116, at 37-38 (1989); H.R. Rep. No. 101-485, pt. 2, at 71 (1990),

reprinted in 1990 U.S.C.C.A.N. at 353-54 (emphasis added). 3 See also H.R. Rep.

No. 101-485, pt. 3, at 32 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 454-55.

2. Employers May Use Qualification Standards That Are Not Government Mandates

The ADA permits employers to apply federal safety standards, such as DOT

standards, as part of the qualification standards for a job. Albertson’s, Inc. v.

Kirkingburg, 527 U.S. 555 (1999). Employers also may use minimum medical

criteria as qualification standards even where they are not mandated to do so by

law. First, nothing in the statutory language limits employers’ use of safety

standards to the minimum requirements adopted by the federal government.

3 The explanation continues that “the criterion may not be used to exclude an applicant with a disability if the criterion can be satisfied by the applicant with a reasonable accommodation. A reasonable accommodation may entail adopting an alternative, less discriminatory criterion.” Id. The Committees, did not, however, suggest any standards for how such a criterion could or should be identified or evaluated.

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Second, the ADA’s legislative history reflects the drafters’ concern that standards

established for safety and security sensitive positions be preserved, stating

unequivocally that the ADA is not intended to “override any legitimate medical

standards established by federal, state or local law, or by employers for applicants

for safety or security sensitive positions, if the medical standards are consistent

with [the ADA].” H.R. Rep. No. 101-485, pt. 3, at 43 (1990), reprinted in 1990

U.S.C.C.A.N. 445, 466; H.R. Conf. Rep. No. 101-596, at 59-60 (1990), reprinted

in 1990 U.S.C.C.A.N. 565, 568 (emphasis added).4 Accordingly, even though the

DOT hearing standard applies only to drivers of trucks weighing over 10,000

pounds, nothing in the ADA precludes UPS from using the same standard more

broadly, provided that it meets the “job-related and consistent with business

necessity” test.

Importantly, the ADA uses the identical phrase “job-related and consistent

with business necessity” not only to establish the minimum requirements for using

a selection procedure that screens out individuals with disabilities, as discussed

above, but also to set the parameters within which an employer may require a

4 With limited exception, the legislative history reveals that Congress intended to prohibit employers from using standards that resulted in a blanket exclusion of individuals with certain disabilities. This general prohibition is distinct from what Congress did intend for employers to utilize, i.e., standards based on certain physical abilities. See S. Rep. No. 101-116, at 27. This is an important distinction, because standards based on physical abilities address the individual’s

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medical examination or make medical-related inquiries. 42 U.S.C.

§ 12112(d)(4)(A). Here, too, Congress emphasized that employers may establish

their own qualification standards without a government mandate. In explaining

what medical examinations for employees might be “job-related and consistent

with business necessity,” the House Labor Committee stated:

Section 102(c)(4) prohibits medical exams of employees unless job related and consistent with business necessity. Certain jobs require periodic physicals in order to determine fitness for duty. For example, Federal safety regulations require bus and truck drivers to have a medical exam at least biennially. In certain industries, such as air transportation, physical qualifications for some employees are critical. Those employees, for example, pilots, may have to meet medical standards established by Federal, State or local law or regulation, or otherwise fulfill requirements for obtaining a medical certificate, as a prerequisite for employment. In other instances, because a particular job function may have a significant impact on public safety, e.g. flight attendants, an employee’s state of health is important in establishing job qualifications, even though a medical certificate might not be required by law.

H.R. Rep. No. 101-485, pt. 2, at 74 (1990), reprinted in 1990 U.S.C.C.A.N. 303,

356-57 (emphasis added). Similarly, the Conference Report explains:

[I]n certain industries, such as air transportation, applicants for security and safety related positions are normally chosen on the basis of many competitive factors, some of which are identified as a result of post-offer pre-employment medical examinations. Thus, after the employer receives the results of the post-offer medical examination for applicants for safety or security sensitive positions, only those applicants who meet the employer’s criteria for the job must receive confirmed offers of employment, so long as the employer does not use

ability to do a certain essential function of the job, regardless of the type of disability an individual may have.

15

those results of the exam to screen out qualified disabled individuals on the basis of disability.

H.R. Conf. Rep. No. 101-596, at 59 (1990), reprinted in 1990 U.S.C.C.A.N. 565,

568 (emphasis added). Hence, this legislative history also supports an employer’s

use of physical criteria beyond those promulgated by the federal government to

determine qualifications to perform the essential functions of the job as long as the

criteria are job-related and consistent with business necessity.

Thus, for example, the U.S. Court of Appeals for the Second Circuit agreed

with the New York City Transit Authority that it could consider color

differentiation (e.g., not being colorblind) as an essential function of New York

City bus drivers whether or not federal or state regulations mandated that it do so.

“Even if the regulations governing bus drivers permitted a driver who was unable

to distinguish between red and green to drive a bus, this alone would not disentitle

NYCTA from enforcing a higher standard for its own drivers.” Shannon v. New

York City Transit Auth., 332 F.3d 95, 102 (2d Cir. 2003).

Accordingly, the fact that the government does not apply the DOT standard

to drivers of trucks weighing less than 10,000 pounds does not preclude UPS from

doing so.

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C. Public Policy Dictates That Employers Be Permitted To Develop and Apply Adequate Standards To Protect the Safety of the Public

It is difficult to believe that Congress through passage of the ADA intended

to discourage the development of safety standards in the workplace. A ruling that

effectively prevents employers from setting safety-based qualification standards

that are job-related and consistent with business necessity to compare qualified

applicants or employees could achieve just such a result. It is an important goal

that businesses and industries collectively attempt to self-regulate in the interest of

public safety. Businesses may not, however, continue to make the effort to

participate in self-regulation if such efforts will actually result in legal liability.

Punishing employers who adhere to legitimate safety standards will create a

disincentive to maintain needed safety standards.

Public policy dictates that employers be permitted to develop and apply

safety standards to determine if an employee is qualified. Employers face bad

publicity if they are perceived as endangering the safety of the general public. In

addition, both private citizens and the government can sue employers if an

employer’s actions compromise the safety of the public, or even natural resources.

Employers must take preventive measures to ensure that employees are able

to perform the essential functions of the job in a safe manner. See, e.g., Watson v.

City of Miami Beach, 177 F.3d 932, 935 (11th Cir. 1999) (holding that fitness for

17

duty examination was “job-related and consistent with business necessity” because

“the ADA does not, indeed cannot, require a police department to forgo a fitness

for duty examination to wait until a perceived threat becomes real or questionable

behavior results in injuries”). An employer that fails to do so will have a difficult

time convincing a jury that it should not be accountable for damages because it

was fulfilling its obligation under the ADA. See, e.g., Shannon, 332 F.3d at 103.

(noting that “[c]olor differentiation is a qualification that NYCTA may properly

deem essential for driving a bus because it conduces to the safety of passengers

and because it serves to limit NYCTA’s tort liability in situations where color

blindness might cause an accident as well as where it may be alleged to have done

so”).

Reasonableness is the guiding principle of the ADA. It is not reasonable to

forbid an employer from relying on standards designed to protect the safety of the

general public. Public policy warrants an interpretation of the ADA that reconciles

the reasons why the ADA was passed: to promote the employment of qualified

individuals with disabilities; to ensure that they are qualified based on sound

business necessity rather than myth or stereotype; and to protect the safety of the

general public.

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II. THE DISTRICT COURT’S DECISION EFFECTIVELY NEGATES THE “BUSINESS NECESSITY” DEFENSE

In Morton v. United Parcel Service, Inc., 272 F.3d 1249, 1258 (9th Cir.

2001), an earlier case involving UPS’s use of the DOT hearing standard, this Court

confirmed that “an employer may require disabled employees as well as others to

meet an across-the-board qualification standard if it can establish the stringent

elements of the business necessity defense.” (citations omitted). Morton

established two ways in which an employer might establish the “business

necessity” defense: by showing either (1) “that all persons who fail to meet a

disability-related safety criterion present an unacceptable risk of danger” or (2)

“that it is highly impractical more discretely to determine which disabled

employees present such an unacceptable risk . . . .” Id. at 1263.

As does Defendant-Appellant UPS, Brief of Appellant at 34, EEAC

respectfully submits that the Morton court should not have used the more

restrictive requirements of the “bona fide occupational qualification” (BFOQ)

defense used under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.

§§ 2000e et seq. and the Age Discrimination in Employment Act (ADEA), 29

U.S.C. §§ 621 et seq., to craft a rule for applying the ADA “business necessity”

defense to safety-based standards. Under Title VII and the ADEA, “business

necessity” and “BFOQ” are quite different concepts and should not be blurred or

merged. Moreover, given the ADA’s multiple provisions regarding safety, and this

19

Court’s concession that “the ADA business necessity defense may not mimic in all

respects the defense as it has been developed in the earlier statute,” Morton at

1260, we submit that the ADA “business necessity” defense should be interpreted

on its own, without reference to other statutes that lack explicit safety

considerations. The Morton rule essentially imposes a higher standard on safety-

based qualifications than would apply, for example, to a typing test.

It is not necessary in this case, however, for the panel to determine whether

Morton was rightly or wrongly decided, since the district court’s interpretation of

Morton resulted in raising the bar of the business necessity defense well out of

reach. Under the district court’s interpretation of Morton, it is difficult to conceive

of a safety-based qualification standard that could pass the test.

The district court acknowledged, indeed “agree[d] with UPS that all other

things being equal, a driver with perfect hearing would likely pose less of a safety

risk than a driver with impaired hearing.” Bates, at *29, 16 A.D. Cas. (BNA) at

228. The court continued, “[a]s a result, there are, in theory at least, situations

where a hearing driver would avoid an accident while a deaf driver, with all of the

same training and skills except for hearing, would not.” Id.

Inexplicably, however, these sapient observations did not lead the trial court

to conclude that UPS had met its business necessity defense. Rather, the district

20

court responded by interpreting Morton in a way that creates several

insurmountable hurdles.

First, the district court viewed the Morton requirement of a showing that “all

or substantially all deaf drivers pose an increased risk” as requiring UPS to

establish that point essentially beyond any possible doubt. Bates, at *26, 16 A.D.

Cas. (BNA) at 226. While acknowledging UPS’s expert evidence that deaf drivers

indeed pose an increased risk, id., the district court nevertheless discounted each

part of evidence based on one perceived flaw or another, e.g., that one study used

volunteers, which may have affected the results. Id. Similarly, the district court

rejected UPS’s human factors analysis, conducted on behalf of the Federal

Highway Administration, which concluded that “hearing is both important and

necessary for the safe operation of commercial vehicles.” Id., at *27, 16 A.D. Cas.

(BNA) at 227 (citation and internal quotation omitted). While acknowledging that

“human factors [analysis] is a valid scientific field,” the district court rejected the

analysis, which was based on research involving eleven subject matter experts and

80 truck drivers, on the grounds that it called for subjective judgments – and

individuals’ definitions of what is “very important,” “important,” “unimportant,”

or “very unimportant,” could differ. Id.

Third, the district court concluded that UPS has to show “that deaf drivers

pose a greater safety risk than that already accepted by the company,” id. at *29,

21

16 A.D. Cas. (BNA) at 228, noting “that UPS tolerates some level of risk among

its drivers and does not require them to be accident-free.” Id., 16 A.D. Cas. (BNA)

at 229. This concept presents yet another insurmountable burden for any company

seeking to establish the business necessity defense. In essence, the district court’s

interpretation would require a company to terminate the employment of any

employee who is involved in a motor vehicle accident, lest it be accused of

tolerating risk. In essence, the district court discounted UPS’s evidence because

the company has a program in place to monitor accident rates and improve driving

skills. Moreover, it ignores the fact that the increased risk posed by deaf drivers,

as demonstrated by UPS’s expert evidence, has to be assessed in addition to any

normal risk posed by hearing drivers.

As a practical matter, the district court’s interpretation faults the company

for not being risk-free. This view simply defies logic. No business is risk free, nor

can it be. Accidents happen. As a result, conscientious companies, like UPS, are

risk-averse, leading to the adoption of qualification standards like the one at issue

in this case in an effort to prevent serious harm. If tolerating some risk negates any

possibility of showing a business necessity defense, then no company can meet the

district court’s requirements.

As a practical matter, the district court’s interpretation of Morton requires

UPS – indeed, any company using qualification standards that screen out

22

individuals with disabilities, to prove a host of unprovable negatives, i.e., “that it is

impossible to do a valid study comparing the relative risks posed by deaf drivers,”

id. at *30, 16 A.D. Cas. (BNA) at 230, “that it would be impossible to do studies

using computer simulators, or studies using actual vehicles on closed courses,

regarding the situations in which UPS believes deaf drivers would be unsafe of the

extent to which compensatory mechanisms may assist deaf drivers in avoiding

accidents, id., and the like. Taken together, the district court’s view of Morton

makes the business necessity defense an insurmountable obstacle that no company

could meet.

The district court’s decision, by making it essentially impossible for a

company to defend a safety-based qualification standard, runs contrary to the plain

language of the ADA and its legislative history, as well as decisions of this Court

and others. In so doing, it potentially endangers the lives of millions of Americans

who could be injured because a company was forced to abandon a legitimate

safety-based qualification standard. At the very least, it creates the potential for

protracted litigation against companies forced to choose between safety and

lawsuits.

23

CONCLUSION

For the foregoing reasons, the amicus curiae Equal Employment Advisory

Council respectfully submits that the decision below should be reversed.

Respectfully submitted,

______________________________

Ann Elizabeth Reesman McGuiness Norris & Williams, LLP 1015 Fifteenth Street, N.W. Suite 1200 Washington, DC 20005 (202) 789-8600 Attorneys for Amicus Curiae Equal Employment Advisory Council

March 14, 2005

CERTIFICATE OF COMPLIANCE PURSUANT TO FED R. APP. 32(a)(7)(C) AND CIRCUIT RULE 32-1

FOR CASE NO. 04-17295

I certify that: X Amicus Briefs

X Pursuant to Fed. R. App. P. 29(d) and Ninth Circuit Rule 32-1, the attached

amicus brief is proportionally spaced, has a typeface of 14 points or more

and contains 7,000 words or less,

or is

Monospaced, has 10.5 or fewer characters per inch and contains not more

than either 7000 words or 650 lines of text,

or is

Not subject to the type-volume limitations because it is an amicus brief of no

more than 15 pages and complies with Fed. R. App. P. 32(a)(1)(5).

______________ ____________________________________ Date Signature of Attorney or Unrepresented Litigant

CERTIFICATE OF SERVICE

This is to certify that two true and correct copies of the Brief Amicus Curiae

of the Equal Employment Advisory Council in Support of Defendant/Appellant

and in Support of Reversal were served today on the following counsel via U.S.

Mail, first class, postage prepaid, addressed as follows:

Laurence W. Paradis Todd M. Schneider Caroline Jacobs Schneider, McCormac & Wallace Disability Right Advocates 1700 California Street 449 15th Street, Ste. 303 Suite 340 Oakland, CA 94612 San Francisco, CA 94109 Christopher J. Martin Mark A. Perry Rachel S. Brass Rachel A. Clark Gibson, Dunn & Crutcher LLP Gibson, Dunn & Crutcher LLP 1881 Page Mill Road 1050 Connecticut Ave., N.W. Palo Alto, CA 94304 Washington, DC 20036

__________________________ March 14, 2005 Ann Elizabeth Reesman