In an en banc decision, the Ninth Circuit remands a case involving a United Parcel Service policy of excluding hearing-impaired applicants for “package-car driver” positions. UPS had excluded driver candidates if they could not pass the U.S. Dept. of Transportation hearing standard, even though the vehicles operated by the drivers were not covered by the DOT rules. In Oct. 2006, a three-member panel of the Court held that UPS did not prove that deaf delivery drivers would be unsafe. UPS argued that the hearing-impaired drivers were not “qualified individuals” because they could not meet the company’s requirement to pass the DOT hearing standard, and thus could not meet an essential function of the job, which was DOT certification to drive all commercial vehicles.

The full Court draws a distinction between essential functions and qualification standards. “Whereas ‘essential functions’ are basic ‘duties,’ [citation omitted]’qualification standards’ are ‘personal and professional attributes’ that may include ‘physical, medical [and] safety’ requirements,” the Court says. Since UPS linked hearing with safe driving, it bore the burden to prove that as part of its defense to use the hearing qualification standard, the Court holds, “The employees, however, bear the ultimate burden to show that they are qualified to perform the essential function of safely driving a package car.” Bates v. United Parcel Service