Appellate Court Does About Face on UPS Discrimination Case

December 31, 2007 (PLANSPONSOR.COM) - A federal appellate court has thrown out its earlier ruling in a discrimination case against the United Parcel Service (UPS) and set out a standard for how employers can defend themselves against allegations of discrimination against the disabled.

Sitting as a group, the 15-member 9 th  Circuit Court of Appeals changed its mind from its first ruling in the case in October 2006 involving hearing-Impaired UPS drivers and whether the package delivery company discriminated against them for positions as package car drivers (See UPS Violates ADA with Policy Against Deaf Drivers ).

The latest 9 th  Circuit decision threw out an injunction barring certain tests for the driver positions and sent the case back to Senior U.S. District Judge   Thelton E. Henderson of the U.S. District Court for the Northern District of California for additional hearings in the case.   The newest appellate ruling also vacated certification of a class of hearing-impaired drivers.

The decision   laid out a new defense standard for employers hit with Americans with Disabilities Act (ADA) claims.“UPS is entitled to use as some evidence of its business necessity defense the fact that it relied on a government safety standard,” Circuit Judge M. Margaret McKeon wrote for the court, “even where the standard is not applicable to the category of conduct at issue.”

Employers like the U.S. Chamber of Commerce had argued in friend of the court briefs for the new “business necessity” standard that the court adopted.

The federal government requires drivers of large trucks to pass a hearing test. UPS had used the same federal standard in screening drivers for smaller trucks, which the plaintiffs said is discriminatory.

The latest appellate ruling is here .

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