En Banc Ruling Adopts New Standards for Business Necessity Defense Under ADA.

UPS categorically excluded individuals from package? car? driver? positions? if? they? could? not pass a U.S. DOT hearing standard that does not by its terms apply to package cars. ?The drivers filed a class action suit under the ADA. ?After a bench trial, the district court ruled in favor of the plaintiffs and entered an injunction.?? ?UPS appealed the injunction interlocutorily. ?A three- judge panel of the Ninth Circuit affirmed, ruling that the UPS policy was facially discriminatory and rejecting UPS?s argument that the employees had the burden of proving they could drive safely as part of showing they were ?qualified? for the positions in question, which is the employer?s burden to show an ADA business necessity defense. ?En banc, the Ninth Circuit reversed and remanded, holding that the district court used the wrong standards and failed to make a necessary finding.? ?The district court found that class representatives met the prerequisites to apply for the driving positions, specifically that they are ?safe? drivers, rejecting UPS?s argument that the plaintiffs also had to prove they are safe drivers even though hearing impaired — on the ground that? this? would? impose? on? the? plaintiffs? the burden ?of ?disproving ?the ?employer?s ?business necessity defense.?? The en banc panel concurred, explaining: ??Because UPS has linked hearing with safe driving, UPS bears the burden to prove that nexus?The employees, however, bear the ultimate burden to show that they are qualified to perform the essential function of safely driving a package car,? not their personal cars. ?Concluding that the district court did not make this finding, the panel reversed and remanded for the employees to prove that they are ?qualified individuals.??? The Court also remanded for the district court to re-analyze reasonable accommodation under a new standard, overruling the Circuit?s prior holding in Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir. 2001), which had adapted ?the Title VII and ADEA?? BFOQ?? safety?? standard?? in?? the?? ADA context.??????? To? ?show? ?business? ?necessity,? ?an employer ?bears the burden of showing that the qualification? ?standard? ?is? ?(1)? ??job-related,?? ?(2) ?consistent with business necessity,? and (3) that ?performance ?cannot ?be ?accomplished? by reasonable accommodation.?? To show the qualification? is ?job-related, ?the ?employer ?must show that it ?fairly and accurately measures the individual?s actual ability to perform the essential functions of the job? and where the standard is a blanket exclusion of a protected class it must have ?a predictive or significant correlation between the qualification and performance of the job?s essential functions.??? For business necessity, the employer must show that the qualification ?substantially promote[s]? ?business ?needs,? a? standard? that? ?is quite high,? not satisfied by ?mere expediency.? Finally, ??the ?employer ?must? demonstrate? either that no reasonable accommodation currently available would cure the performance deficiency or that such accommodation poses an ?undue hardship.??? ?Holding that the district court had improperly applied the modified BFOQ analysis of Morton, the Ninth Circuit reversed and remanded the issue. ?Judge Berzon concurred in much of the opinion but complained that the majority opinion failed? to? give? adequate? guidance? to? the? district court? on? how? the? plaintiffs? can? satisfy? their ultimate burden that they can drive package cars safely.?? She would not remand on the ?qualified individual? ?point, ?concluding ?that ?the ?plaintiffs should only have to meet the eligibility requirements before UPS must prove its defense. Bates v. UPS, No. 04-17295 (Dec. 28, 2007, en banc opinion by McKeown; partial concurrence/dissent by Berzon)