Washington State Human Rights Commission

UPS imposed a U.S. Department of Transportation (DOT) qualification standard on all package car drivers. The DOT standard is federally mandated for drivers of vehicles over 10,000 pounds, and excludes hearing impaired individuals from driving these vehicles. Many UPS vehicles are under 10,000 pounds, and thus the DOT qualification standard is not mandated by federal law for the drivers of these vehicles. Hearing impaired UPS employees, who were unable to advance to driver positions due to this imposition of the DOT standard, sued UPS under the Americans with Disabilities Act (ADA) and California law, and were certified as a class.

The District Court held a bench trial and found that the Plaintiff class met a prima facie case under a pattern and practice discrimination theory: That the policy was a blanket exclusion of deaf individuals; and that at least one member of the class met all of the qualifications, other than the hearing qualification, for driving positions. The Court then looked at Respondent’s business necessity defense - UPS argued that in order to operate its business, it needs safe drivers and one way to determine if someone is a safe driver is to have them meet the DOT qualification standards. The Court found that UPS did not meet its burden of proof for a business necessity defense. In doing this the Court applied a bona fide occupational qualification (BFOQ) standard in analyzing the challenge to the proscribed classification (see further information on BFOQs below). The Court found UPS liable and enjoined UPS from using the DOT hearing standard. UPS appealed the decision.

The Appeals Court determined that the DOT qualification standard was discriminatory on its face because it focuses on a disabling condition. After determining that the standard was facially discriminatory, the Court then needed to conduct an analysis to determine whether or not the standard was legal. The lower court had applied a burden shifting analysis, but the Appeals Court determined that because the standard was facially discriminatory, the burden shifting analysis was inappropriate. (Under a burden shifting analysis, the employer must explain how the actions taken were based on something other than on a protected class. This step was not necessary in this case, because the employer took action based on a protected class – it excluded persons with hearing disabilities from driving positions.)

The Court set forth that the employee has the ultimate burden of showing he or she is:
1.         Disabled;
2.         A qualified individual with a disability (someone who, with or without reasonable accommodation, can perform the essential functions of the job – see more on reasonable accommodation below);
3.         Discriminated against because of the disability.

After the employee has proved the above, then the employer can put forth a business necessity defense for the qualification standard that is in question. In this case, UPS argued that the qualification standard was linked to its business necessity of having safe drivers.

But the Court stressed that before the employee can even challenge the qualification standard, the employee must prove he or she is a qualified individual with a disability. In order to do this, the essential functions of the job must be looked to. The Court emphasized that the essential functions are not to be confused with the “qualification standards.” Essential functions are the fundamental job duties; they focus on what major tasks, purposes, and labor the job actually entails. Under a disability discrimination analysis, the plaintiff needs to show that he or she is able to perform the essential functions of the job.

As distinguished from essential functions, qualification standards are personal and professional attributes, such as skills, education, physical, medical and safety requirements, that the person must meet to initially become eligible for the position. Under a disability discrimination analysis, a person does not have to meet the “qualification standards” in order to be a qualified individual with a disability. The Court clarified that since it is the qualification standard that is being challenged and that is the basis of the discrimination claim, it would make little sense to require the plaintiff to show that he meets a qualification standard in a situation where he could not possibly meet that qualification standard because of his disability.

Thus, the Appeals Court found that UPS had not made a showing at the lower court trial that DOT certification with its hearing qualification standard is an essential function of the job. The Appeals Court did find that UPS had shown that safe driving is an essential function of the job.

Because the District Court had never made a determination on whether the Plaintiffs were qualified individuals with a disability (i.e. that they are safe drivers), the Appeals Court remanded the case to the District Court for the Plaintiffs to prove that they are qualified individuals with disabilities and for an analysis of reasonable accommodation. The employees bear the burden of proof to make this showing.

Only if that determination is made does the qualification standard as a business necessity become an issue. The Court found that the DOT qualification standard is discriminatory unless UPS can prove a valid defense, such as the business necessity defense, for using the standard. The Court did state that the DOT standard can have relevance to the employer’s safety argument and that reliance on the DOT standard should be entitled to some consideration as part of the business necessity defense.

A bona fide occupational qualification, or BFOQ, is a qualification or characteristic that is “…essential to or will contribute to the accomplishment of the purposes of the job.” WAC 162-16-240. The Equal Employment Opportunity Commission requires that a BFOQ be “…reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. § 2000e-2(e). In very narrow and limited circumstances, a BFOQ is an exception to the requirements for non-discriminatory employment practices, and allows an employer to choose one person over another based on protected class status.

Examples include a choice of a particular person for reasons of authenticity, such as choosing a female African American to play the part of Rosa Parks in a movie. Another example is to maintain conventional standards of sexual privacy; a prison may hire a female prison guard when a main function of her job is to conduct strip searches of female inmates.

It would not be a valid BFOQ for a bilingual emergency operator to be of Spanish national origin. However, it could be a job qualification that the person speak both English and Spanish fluently. Likewise, it would not be a valid BFOQ that a freight handler be male. It could be an essential function of the job that the person be able to lift 75 pounds.

In determining when a BFOQ is legitimate, courts use stringent analyses; the BFOQ exception is very narrowly and rarely applied, and the characteristic must be essential to carry out the purposes of the job. The Court in Bates determined that a BFOQ analysis is not the appropriate analysis to use in a disability discrimination case.

Qualification standards are personal and professional attributes established by an employer, which an individual must meet in order to be eligible for a position. These include skill, experience, education, physical, medical, safety, and other requirements. It is sometimes one of these requirements that will be challenged as discriminatory.

As the Bates court found, a qualification standard that focuses on a disability or excludes persons with disabilities from opportunities for hire or advancement is considered discriminatory on its face. However, this does not mean that the use of such a qualification standard is always illegal. If an employer can show that the use of such standard is a business necessity, then the use of such a standard is considered to be valid. In order to make this showing, an employer bears the burden of proof to show that the qualification standard is

1.         Job-related;
2.         Consistent with business necessity; and,
3.         Performance of the job cannot be accomplished with a reasonable accommodation.

For example, an employer’s requirement that a driver of a commercial vehicle over 10,000 pounds be able to hear is valid, even though the rule is discriminatory against persons who are deaf. Because this requirement is mandated by federal law, it is a business necessity that the employer abides by the federal law and imposes this standard.

Reasonable Accommodation
A reasonable accommodation is a modification or adjustment to the work environment or to the manner under which the job is customarily performed that makes it possible for a person with a disability to perform the essential functions of his or her job. In most cases, the person needing an accommodation must request it. This can be verbal, in writing, or in the form of a doctor’s note. The employer and employee must then enter into an interactive process, which involves both parties discussing the request and possible accommodations. The employer can request additional information from the employee’s doctor or request that the employee get a physical capacities examination. The employer can implement a reasonable accommodation of its own choosing, as long as there is an interactive process and the reasonable accommodation works for the employee and is effective. To find a reasonable accommodation, think creatively, and work together with the employee to come up with a solution that works for both of you. The reasonable accommodation can be alterations to make the workplace accessible, a schedule change, computer hardware or software, ergonomic furniture, alternate break times, allowing the employee to wear a brace, providing a stool to sit on, and more. If there is no solution that allows the employee to work at his or her current job, the employee must be put into an open position for which they are qualified. If there are no such positions, a medical leave might be a necessary accommodation.
Essential Functions
Essential functions are fundamental job duties for the position. They do not include peripheral, infrequent, or marginal duties. The essential functions are determined by how often they are done, how much time is spent doing them, the work experience of people who have held the job in the past, and how important they are to carry out the purposes of the position. A function may be essential because it is the reason the position exists, because only one or a few employees are available to perform that function, or because the function is so highly specialized that the person is hired for his or her expertise to perform the function. Often, a written job description will outline what the essential job functions are, but the person in the position will still have to engage in those duties on a regular basis in order for the duty to be considered essential.
Employer Considerations
Because Bates is a Ninth Circuit case, and Washington is part of the Ninth Circuit, employers should heed the guidance of the Court.

Know what the essential functions of your positions are. What does the person who holds the position actually do on a regular basis to carry out the main purposes of the job? Think about what the essential functions are for a particular position and write those essential functions into a position description. An employer can require anyone who holds the job to perform the essential functions with or without reasonable accommodation. If an employee needs a reasonable accommodation to perform the essential functions of the job, the employer must enter into an interactive process to determine a reasonable accommodation.

Be cautious about having a qualification standard that on its face excludes someone or may exclude someone based on protected class membership. An example of this can be seen in the Bates case. Also be cautious about a job qualification standard that has the effect or possible effect of excluding persons in a protected class, even though the standard does not appear to be related to the protected class. This is referred to as disparate impact discrimination. An example of this could be having a qualification standard requiring a college degree; persons of color are statistically less likely to have a college degree, so this kind of standard could exclude a larger percentage of persons of color. An employer can require specific knowledge regarding how to do the job.

Before you ever impose a job qualification standard, think through the end results of having such a standard. Who is the standard going to impact, or who might it impact? Make sure that the standard is related to the job. Also make sure that the standard is related to the ability of the employer to conduct business. Finally, be sure to explore possible reasonable accommodations that would enable the person with a disability to do the job.

To obtain this information in an alternate format or if you have questions or comments about this site, please contact the Webmaster. PRIVACY NOTICE