In Bates v. United Parcel Service, Inc., UPS required all drivers to pass a hearing test approved by the Department of Transportation.
Even though the local drivers were not required to meet the DOT standard, the court said that all UPS should have to prove is whether the hearing tests were related to safe driving and that a reasonable accommodation was not available.
The court did not require the employer to meet a BFOQ (bona fide occupational qualification) standard under Title VII discrimination. This would have been a very difficult standard to apply to an ADA situation.
Lesson learned: If a hiring practice has a “disparate impact” on a protected group you have to use a BFOQ defense. For example, if a physical lifting requirement has a disparate impact on women, you would have to use a BFOQ defense.
Alternatively, if a lifting requirement has an impact on people with lower back problems, you only have to use the standard ADA defense of determining whether the lifting requirements were created to safe conduct and that a reasonable accommodation was not available.
