Bates v. United Parcel Serv., 511 F.3d 974 (9th Cir. 2007) (en banc)

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, sitting en banc, reversed the district court’s judgment that was rendered in favor of plaintiffs because it had failed to analyze whether plaintiffs were “qualified individuals” capable of performing the “essential function” of safely driving a package car. The Court overruled its earlier opinion in Morton v. United Parcel Serv., 272 F.3d 1249 (9th Cir. 2001), to the extent that that opinion imported into the analysis of an ADA claim the bona fide occupational qualification defense found in Title VII and the ADEA. Further, the Court reversed the judgment with respect to plaintiffs’ claim for violation of the Unruh Act on the ground that it does not incorporate the employment discrimination provisions found under Title I of the ADA.