Richard D. Alaniz

With more than 65,000 vehicles on the road each day, managers at Atlanta-based United Parcel Service Inc. (UPS) thought they were protecting the company when they implemented a policy that required all applicants for driver positions to meet the U.S. Department of Transportation’s (DOT’s) hearing standards for drivers of the largest class of commercial vehicles. The company based its policy on three studies that showed that deaf drivers were, as a general rule, more susceptible to traffic accidents than their hearing counterparts. But while the policy may have reduced the risk of traffic accidents involving deaf drivers, it exposed the company to another type of risk - legal liability for violating the Americans with Disabilities Act (ADA).

In 1999, a group of 1,000 deaf or hearing-impaired UPS employees sued the company, arguing that the company’s blanket prohibition on hiring them for driver positions illegally prevented them from advancing their careers at the company and violated their rights under the ADA. After seven years of litigation, a California federal court ruled in the employees’ favor, finding that UPS’s policy violated the law. The court ruled UPS could no longer enforce its policy and ordered the company to pay the plaintiffs $5.8 million.

Although the case was recently reheard by the 9th Circuit Court of Appeals and sent back to the lower court for further proceedings,Bates v. UPShighlights the difficult situation companies face when trying to balance their need for employee and public safety with their legal obligations under the ADA.

PROTECTING WORKERS

Congress enacted the ADA in 1990, with an effective date of 1993, to, among other things, prevent employment discrimination against individuals with disabilities who are otherwise able to perform the essential functions of a job with or without “reasonable accommodations” from the employer.

The Act makes it unlawful for any employer of 15 or more people to discriminate “against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.”

Courts have specifically found that employers violate the Act when they conduct pre-job offer medical screenings, specifically ask an applicant questions about whether he or she has a disabling condition, or automatically screen out people with disabilities by applying an employment test or qualification standard that is not directly related to an essential function of the job. However, employers may always require employees to maintain the appropriate licenses for the position they seek and meet any state or federally mandated standards, and they do not need to lower their safety standards to accommodate disabled individuals.

InBates v. UPSthe court found that UPS’s general policy against hiring deaf drivers violated the Act because it didn’t allow for an individual assessment of each drivers’ ability to safely operate a vehicle with accommodations such as extra mirrors and other visual aids. Further, the court found that although the standard UPS applied was mandated by the DOT for drivers of trucks heavier than 10,000 pounds, UPS violated the ADA when it applied that test to drivers for all vehicles in the absence of a clear showing that hearing-impaired individuals were any less capable of driving smaller vehicles safely.

ACCOMMODATION NATION

The Americans with Disabilities Act defines an individual with a disability as a person who “has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment.” This means that employers must consider whether they must offer accommodations to individuals with a wide variety of physical or psychological impairments - a person with a back injury who requires special seat padding or back support, a diabetic who needs more frequent breaks during the day to eat or take insulin, and a person who has arthritis and needs an extra step to get into and out of a vehicle may all come under the coverage of the Act.

When considering whether it has a duty to accommodate such individuals, employers must carefully weigh what their legitimate business needs are and the employee’s ability to meet those needs. An employer does not need to create a new job to accommodate a disabled individual, but it may be required to modify aspects of the job - especially if certain duties are ancillary to the core job functions. For instance, if workers at a certain company generally work four hours before getting a 15-minute break, it may be a reasonable accommodation to give a worker with diabetes a 10-minute break every two hours. Mere inconvenience or a small expense to the employer is not enough “undue hardship” on the company to bring the employee outside the law’s protection.

While employers do not have to honor employees' demands for accommodations that are unreasonable or too burdensome, they are obligated to try to reach a compromise that will meet the employees’ needs. It’s essential for the employer to communicate with the employee and assess each individual’s situation. An employee with a disability should only be terminated if it is impossible for him to perform the essential functions of his job with accommodations that are reasonable, taking into account the employer’s size and resources.

In circumstances where the employer wants to verify the extent and seriousness of the employee’s medical condition, it must tread lightly. An employer may not require applicants to undergo medical examinations or ask questions about disabilites before extending a job offer. Nor may an employer ask the applicant’s doctor. However, after making a job offer, an employer may ask disability-related questions and perform medical examinations, and may condition the job offer on the results of these inquiries, so long as all employees in the same job classification are subject to the same examination or inquiry.

COMPLIANCE TIPS

It’s essential to remember that the ADA only requires employers to offer disabled individualsreasonableaccommodations. That means that if a requested accommodation would either be unduly financially burdensome to the employer or would not enable the employee to perform the necessary job tasks, the employer does not have to grant it.

Thus, it’s important to have clear job descriptions that accurately describe the duties of the job and what capabilities employees must have. Whenever a job qualification standard, such as being able to climb stairs or ladders, tends to screen out people with disabilities, the onus will be on the employer to show that that qualification is job related and consistent with a business necessity.

Fortunately, courts have recognized that regular attendance is an “essential function” of all jobs, and the Equal Employment Opportunity Commission, which enforces the ADA, points out in its compliance guidelines that “an employer is not required to lower quality or production standards to make an accommodation.”      

The key to complying with the ADA is engaging in an interactive discussion with the employee to find out what accommodations would enable them to perform the essential functions of the job. Where employers get in trouble is when their policies exclude disabled people on the basis of their disability without considering what modifications might help in each individual case. Oftentimes, liability rests not on the employers’ inability to accommodate an employee, but rather on its unwillingness to find out whether it can.

Publication date:05/19/2008