9th Circuit: UPS must hire deaf drivers

by Walter Olson on October 12, 2006

The package delivery company believes that the safer policy is to hire only hearing drivers to operate its trucks, but the 9th Circuit finds that a violation of the Americans with Disabilities Act:

The ruling puts employers in a “damned if they do and damned if they don’t” situation, said Joe Beachboard, a Los Angeles lawyer who represents employers.

If UPS doesn’t employ deaf workers as drivers, it can be sued under the disability act, he said. But if a deaf UPS driver has a serious accident, the company also could be sued.

(Lisa Girion, “UPS Ban on Deaf Drivers Is Rejected”, Los Angeles Times, Oct. 11). More: WSJ editorial, subscriber-only (“Common Sense-Impaired”, Oct. 19).

{ 16 comments }

1 Deoxy 10.12.06 at 10:26 am

Whoevr said that avoiding lawsuits was a GOOD thing? Certainly not the lawyers…

2 Ima Fish 10.12.06 at 1:27 pm

“But if a deaf UPS driver has a serious accident, the company also could be sued.”

I don’t understand this. UPS is probably sued every time one of its employees causes a “serious accident.” What does Deafness have to do with it?

Can Deaf people have a valid truck driving license? Yes. Can they drive trucks? Yes. So what’s the problem? It seems to me as though UPS is looking for an excuse to discriminate.

3 Deoxy 10.12.06 at 4:58 pm

Not to be rude about it, but, all other things bing equal, a deaf person will not be as safe a driver as a haring person… because they CAN’T HEAR.

Now, all other things AREN’T equal all the time, and I am quite sure there are deaf drivers who are better than the average hearing driver.

But that doesn’t change the statement at the beginning.

Not to mention that, unless they mean just distance trucks not delivery trucks, there is a significant customer interaction portion of the job, and the vast majority of the US population does not sign.

I have a good friend who is blind, and I am familiar with many of the issues that cause people with disabilities difficulties… but that doesn’t mean that treating them as if they didn’t have disabilities makes the disabilities go away.

4 Jim Collins 10.12.06 at 5:59 pm

Ever think that it may not be UPS that is discriminating, it may be their insurance carrier? Yes a deaf person can have a driver’s license, I don’t know if they can have a CDL though. If they can, I’m willing to bet that a deaf driver is going to pay alot more in insurance premiums. Maybe ADA should be applied to insurance companies.

5 smurfy 10.12.06 at 8:03 pm

Sound company policy?

sorry, couldn’t resist.

6 Cenrand 10.12.06 at 8:55 pm

Since deaf drivers most likely arent fidgeting with the radio or talking on a cell phone, it seems like they might be involved in fewer accidents.

7 Michael J. Cheaney 10.12.06 at 9:29 pm

As a self employed CDL Driver, I feel more than qualified to answer a few questions posed by people.

-Can Deaf people have a valid truck driving license? No they CANNOT applicants must have at least some degree of hearing in order to obtain a CDL. That rule has been in effect since 1993. So no Ima UPS is not the one discrimiating. It was/is the DOT.

8 bryan 10.12.06 at 9:36 pm

They really are damned if they do, damned if they don’t; they probably don’t hire deaf people because some deaf people can’t get CDLs. However, the ruling probably says they have to hire people meeting federal regulations.

From the Federal Motor Carrier Safety Association, USDOT: (http://www.fmcsa.dot.gov/rules-regulations/administration/medical.htm)

49 CFR 391.41(b)(11)

A person is physically qualified to drive a commercial vehicle if that person:

First perceives a forced whispered voice in the better ear at not less than five feet with or without the use of a hearing aid.

(other testing is allowed, see the link)

9 Ima Fish 10.13.06 at 8:47 am

“Not to be rude about it, but, all other things bing equal, a deaf person will not be as safe a driver as a haring person… because they CAN’T HEAR.”

“If they can, I’m willing to bet that a deaf driver is going to pay alot more in insurance premiums.”

Exactly what do you base this on guys? Are you guys Deaf? Do you guys know Deaf people? Have you ever ridden in a car driven by a Deaf person? Have you conducted studies on this, or even read studies?

“Since deaf drivers most likely arent fidgeting with the radio or talking on a cell phone, it seems like they might be involved in fewer accidents.”

Unless they’re tapping away on their blackberrys!

“First perceives a forced whispered voice in the better ear at not less than five feet with or without the use of a hearing aid.”

Thanks Bryan for the cite. That’s really helpful. Deafness is not an absolute like pregnancy. It’s a sliding scale. If a truly Deaf person cannot obtain his or her CDL, then it’s apparent that UPS is not discriminating against the truly Deaf. UPS is actually attempting to discriminate against what most people would consider the hard of hearing.

Let’s look at it this way guys. Studies would clearly show that Black men are more likely to be involved in crime. Does that mean that Banks should not have to hire Black men?! Of course not.

10 Jim Collins 10.13.06 at 12:44 pm

Ima, if a person meets the hearing requirements are they “truly deaf”? There is a major arguement among people who are classified as deaf as to what constitutes being deaf.

A person who meets the physical requirements and capabilities for a job doesn’t really have a handicap. If a driver has a CDL and meets the other requirements for the position there is no reason that they shouldn’t have the job. I’m waiting for companies who employ people in my field to be sued for not hiring the “truly blind”.

I do 3D mechanical design.

11 Tom 10.13.06 at 1:59 pm

Jim:

Yes, Insurers will “discriminate” (to the extent the law allows) between those of lower and those of higher risks.

The “damned if you do, damned if you don’t” situation UPS finds itself in has downstream economic consequenses. The likelihood of being sued under the ADA for allegedly discriminating against handicapped individuals may result in higher premiums to be paid to the insurer providing Employer’s Liability Coverage. The liklihood of being sued for the negligent hiring of handicapped individiuals blamed for causing a traffic accident may result in higher premiums to be paid by the insurer providing Auto Liability Coverage.

Of course, the Trial Bar sees nothing wrong with this – they can sue on both ends, and the cost is passed on by UPS to the consumer. If consumers complain, blame the insurance companies.

12 Marty 10.13.06 at 5:52 pm

This ruling sucks for the guy in the ambulance, stuck behind a UPS driver who can’t hear him honking his horn like mad…

Not to mention the secretary who yells “hey wait, you left an important package here!” as the brownshirt heads through the closing elevator doors.

Overlawyered indeed :)

13 jb 10.14.06 at 8:49 am

If Bryan and Michael are right, then this is a terrible travesty. No one should be exposed to civil liability for not violating the law.

14 PWR 10.14.06 at 2:07 pm

I don’t understand why you are trying to correlate the hearing loss and accidents. Scienifically, you had looked at the wrong correlation! Hearing loss does not consitute to increase a risk of vehicle accident. It is just a driver that is based on his or her responsibilities and behaviors when he or she drive this vehicle! You have been using this excuse to make the case against the deaf employees unfairly!

15 pwr7549 10.15.06 at 8:39 am

“For years other companies, such as the U.S. Postal Service, have permitted deaf employees who have demonstrated safe driving skills, to drive the lighter vehicles that are part of UPS’ fleet without problems. Under the Court’s ruling, UPS will have to join its competitors and actually conduct individualized assessments of deaf employees who seek the opportunity for promotion to such driving positions. This is what the Americans with Disabilities Act is all about – ensuring that people with disabilities have a fair chance to succeed.”

16 Deoxy 10.16.06 at 1:10 pm

“Exactly what do you base this [deaf not as good drivers] on guys? Are you guys Deaf?”

Um, the fact that the primary method a car has for warning another car about anything is the HORN? Same with Trains? Not to mention SIRENS?

Our society, and the driving portion of it, take great advantage of both sight and hearing. Someon without one of thos dos not make as safe a driver as someone with both.

This is self-evident, or we wouldn’t use horns or sirens.

I’m trying hard not to be condescending here, but it’s really quite difficult.

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