9th
Circuit Court Upholds UPS Driver Restrictions
[Posted
10/14/05] The 9th
Circuit Court recently handed down a unanimous
decision on the case of EEOC v. United Parcel
Service (UPS). The case started when some partially
blind workers for the Atlanta-based company filed a
suit against UPS for denying them driving positions
in small delivery trucks. Under the UPS vision
protocol, drivers are required to have some central
vision and some peripheral vision in each eye.
The 9th Circuit decided that although the employees
were not disabled under the federal Americans with
Disabilities Act (ADA), they were disabled under
California's Fair Employment and Housing Act (FEHA).
The court stressed that while the ADA requires that
the employee's condition substantially limit a major
life activity, the FEHA requires only that the
employee's condition limit a major life activity.
They also said that UPS satisfied the FEHA's
safety-of-others defense. According to the court,
the employer’s safety-of-others defense (Cal Gov't
Code Section 12940(a) is valid because (1) the
employer's vision protocol rested on objective and
statistical evidence that monocular drivers were
involved in somewhat more accidents than binocular
drivers, (2) the risk of harm to others was high,
(3) the employer's standard did not categorically
exclude monocular individuals from working as
full-time package car drivers, and (4) the
application of the vision protocol was
individualized to each employee and applicant.
On the same day the opinion on EEOC v. UPS was
issued another three-judge appeals panel heard
arguments in Bates v. UPS, 04-17295, a different
disability case about allowing deaf drivers to drive
small delivery trucks. U.S. District Judge Thelton
E. Henderson had ruled last year that the company's
practice of excluding deaf drivers from operating
trucks less than 10,000 pounds violated the federal
ADA and ordered the company to change its policy
within 30 days, but granted a request by UPS to
delay execution of his ruling while the company
appealed.
Employees with hearing or vision disabilities are
limited in working as commercial delivery drivers,
because they are excluded from any commercial
driving position that requires Department of
Transportation (DOT) or state certification when
driving trucks weighing over 10,000 lbs, but
companies can decide which drivers are qualified to
operate lighter vehicles. Currently, the U.S. Postal
Service and FedEx Corp. allow some deaf drivers to
operate delivery vehicles that weigh less than
10,000 pounds.
[Comment: When examining
drivers, it is important to note what standard is
being used to determine ability to drive. Most
clinic examinations fall under the DOT standards.
Others, like these cases, do not and individual
state laws may impact the decisions. William L.
Newkirk, MD, FACPM]
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