Court upholds injunction allowing deaf UPS drivers

By Julia Cheever, Bay City News Service

October 10, 2006

SAN FRANCISCO - A federal appeals court in San Francisco today upheld a lower court injunction that said United Parcel Service Inc. can't automatically bar deaf drivers from driving delivery vans that weigh 10,000 pounds or less.

The injunction was issued by U.S. District Judge Thelton Henderson in 2004 in a lawsuit filed in 1999 by deaf and hard-of-hearing drivers.

The 9th U.S. Circuit Court of Appeals said Henderson did not err "in finding that UPS failed to show that deaf drivers pose a greater risk than other drivers hired by the company."

The injunction requires Atlanta-based UPS to make an individual assessment of a deaf driver's ability to drive safely and to offer reasonable accommodations if appropriate.

The decision applies only to the company's lighter-weight vehicles. The deaf drivers did not challenge U.S. Department of Transportation regulations that bar drivers who do not pass a hearing test from driving larger vehicles weighing more than 10,000 pounds.

UPS had sought to use that test - which requires a person to hear a forced whisper from five feet away - for drivers of all sizes of vehicles.

Attorney Larry Paradis of Disability Rights Advocates said, "We are elated and vindicated."

Paradis said, "The ruling sends a clear message not only to UPS, but to all employers, that the law will not permit across-the-board tests that screen out employees with disabilities."

The attorney said the case now goes back to U.S. district court for individual mini-trials on damages for several hundred individuals who alleged they were harmed by the company's policy.

A spokeswoman for UPS was not immediately available for comment. In an earlier part of the case, UPS and the drivers reached a settlement in 2003 on two other claims related to accommodations and promotions for deaf people.

The company agreed in that settlement to improve communications systems, working conditions, promotion opportunities and workplace safety for deaf employees. It agreed to pay the workers $5.8 million in damages and to provide $4 million in attorney's fees.

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