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No BFOQ in ADA cases
January 02, 2008 by Ross Runkel at LawMemo
The 9th Circuit, in an en banc opinion, has rejected application of Title VII and ADEA bona fide occupational qualifications (BFOQ) in ADA cases.
Bates v. UPS (9th Cir 12/28/2007) (en banc) (3-2)
Bates sued the employer for violation of the Americans with Disabilities Act (ADA) alleging unlawful exclusion from driving vehicles of 10,000 pounds or less if hearing impaired. The trial court found in favor of Bates. The 9th Circuit reversed.
The employer imposed the Department of Transportation (DOT) hearing standard for vehicles in excess of 10,000 pounds to vehicles of 10,000 pounds or less. The court considered the claim that an employer's safety qualification standard discriminated against otherwise qualified persons with disabilities, and the showing required of an employer to successfully assert the business necessity defense to the use of such a qualification.
Because the employer linked hearing with safe driving, the court concluded that the employer bore the burden to prove that nexus as part of its defense to the use of the hearing qualification standard; however, Bates bore the ultimate burden to show he was qualified to perform the essential function of safely driving a vehicle of 10,000 pounds or less. The court remanded for Bates to prove he was a qualified individual.
The court rejected the adaptation of the Title VII and the Age Discrimination in Employment Act (ADEA) bona fide occupational qualifications (BF0Q) safety standard requirement into the ADA context, where there was no BFOQ defense as such in the ADA (overruling Morton v. United Parcel Service, Inc., 272 F3d 1249 (2001)). Relying on statutory provisions of the ADA's version of the business necessity defense, the court stated the employer must show:
(1) "job-relatedness" by demonstrating that the qualification standard fairly and accurately measures the individual's actual ability to perform the essential functions of the job;(2) "consistent with business necessity" by demonstrating that the disputed qualification standard substantially promotes the business's needs; and
(3) "performance cannot be accomplished by reasonable accommodation" by demonstrating either that no reasonable accommodation currently available would cure the performance deficiency or that such reasonable accommodation poses an undue hardship on the employer.
The DISSENT would require the employer bear the burden of showing, if it desired to adopt as a threshold requirement a minimum hearing level such as the DOT standard, that it can establish under the business necessity test that deaf applicants as a group who do not meet that requirement cannot drive vehicles of 10,000 pounds or less safely.
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