On May 13, 1999, five employees filed this lawsuit against their employer, United Parcel Service (UPS), in the United States District Court for the Northern District of California. The suit alleged violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq., the Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12940 et seq., the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq., and Cal. Gov't Code § 12920.
The plaintiffs, represented by private counsel, alleged that the company's hearing tests were discriminatory. Specifically, they alleged that the company's requirement that all drivers meet Department of Transportation hearing standards, which the DOT only required for drivers of vehicles weighing 10,001 pounds or more, precluded assessment of whether individual employees could perform the job. Additionally, plaintiffs alleged that the company failed to develop interactive policies to address the communication barriers in the workplace, and that this failure, in conjunction with the subjective personnel policies regarding hearing standards, created a glass ceiling. They sought injunctive and declaratory relief.
On November 1, 2001, the court (U.S. District Judge Thelton E. Henderson) granted the plaintiffs' motion for class certification and bifurcation. The class consisted of all the employees of UPS since January 25, 1997 who used sign language as a primary means of communication due to hearing loss or limitation and who alleged that their rights were violated by UPS. Phase I of the trial was to consist of the class claims and Phase II was to assess damages and non-class claims. 204 F.R.D. 440 (N.D. Cal. 2001).
On April 8, 2003, the Phase I bench trial commenced. On November 26, 2003, the court (Judge Henderson) approved a settlement agreement regarding the claims concerning accommodations and promotions. 2004 U.S. Dist. LEXIS 21062, (N.D. Cal. 2004). UPS agreed to pay $5.8 million in damages and to reform its policies.
On October 21, 2004, the court issued an injunction ordering UPS to stop using Department of Transportation hearing standards to screen applicants for package-car driving positions and to perform individualized assessments of an individual's ability to become a package-car driver if the applicant could not pass the hearing standard but met all other job requirements, for example, the ability to drive safely and to communicate with the public effectively. The court prohibited deaf individuals who meet the threshold requirements from being categorically excluded. The court held that UPS had applied the DOT standard beyond its intended scope. 2004 U.S. Dist. LEXIS 21062 (N.D. Cal. 2004).
UPS appealed the case to the United States Court of Appeals for the Ninth Circuit. On September 15, 2005, the Ninth Circuit reversed the district court's judgment regarding its finding of liability under the Unruh Act but upheld it in all other respects, placing the burden on the employer to establish that qualifications are job-related and necessary, and finding UPS in violation of the ADA. Thus, the Court of Appeals affirmed in part, reversed in part, and remanded the case. 465 F.3d 1069 (9th Cir. 2005).
The Ninth Circuit, however, heard the case again en banc, and on June 20, 2007, the previous opinion was vacated. The Ninth Circuit (U.S. Circuit Judge M. Margaret McKeown) remanded the case, ordering the employees to prove that they were "qualified individuals" capable of performing the "essential function" of safely driving a package car and for an analysis of reasonable accommodation. Two judges dissented in this ruling. 511 F.3d 974 (9th Cir. 2007).
On June 15, 2009, after three rounds of mediation, the parties reached a final settlement in the case. Under the terms of the settlement, deaf and hard-of-hearing UPS workers and applicants seeking delivery driver jobs would be subject to a new hearing requirement. The settlement covers workers or applicants who have failed or would fail Department of Transportation-established standards for drivers. The protocol sets a new hearing standard that is between the DOT level and zero. So it requires some hearing ability, but at a level lower than the standard established by the Department of Transportation.
The settlement stated that the defendant company would administer the protocol in the same manner and with the same safeguards as the company administers its protocols for vision-impaired and insulin-dependent drivers. The protocol will be used for a year, after which it will be reassessed to determine whether it should continue or be revised. The protocol will then be reviewed by the panel for final approval.
The settlement contained no monetary relief except for $5.25 million in attorneys' fees and costs.
On December 10, 2010, Judge Henderson granted the motion for final approval of the class action settlement. The settlement is the same as the one as described above, except the parties amended the Hearing Protocol to last for two years instead of only one. The court was asked to maintain jurisdiction until this was accomplished.Kristen Sagar - 06/26/2009
Megan Brown - 11/06/2016