Bates v. United Parcel Serv., 465 F.3d 1069 (9th Cir. 2006)
One of the requirements applied by UPS to those applicants seeking to drive the familiar brown “package cars” was that they pass the physical examination (including a hearing exam) that the DOT requires of drivers of commercial vehicles of a gross vehicle weight rating (GVWR) of at least 10,001 pounds. (UPS’s vehicles had a GVWR of 9,318 pounds or less.) Plaintiffs in this case (a class of deaf UPS applicants and employees) challenged the company’s application of the DOT standard, which did not apply to the vehicles in question. The Ninth Circuit affirmed the judgment in favor of plaintiffs, holding that UPS had failed to satisfy its burden under the business necessity defense of the Americans with Disabilities Act. However, the Court reversed the judgment in favor of plaintiffs with respect to their claim for violation of the Unruh Act, which does not apply to employment discrimination cases such as this. Cf. Walsh v. Nevada Dep’t of Human Resources, 2006 WL 3704779 (9th Cir. Dec. 18, 2006) (state defendants and individuals are immune from ADA liability); Gunther v. Lin, 144 Cal. App. 4th 223 (2006) (in the absence of intentional violation of public accommodation requirements of ADA, plaintiffs are not entitled to recovery of penalties under California law).