June 17, 2009
Deaf and Hearing Impaired Employees Settle Class Action Lawsuit with UPS
NEWS RELEASE
FOR IMMEDIATE RELEASE
June 16, 2009
CONTACTS:
Larry Paradis
Disability Rights Advocates
510-541-4459
510-665-8644
Todd Schneider
Schneider Wallace Cottrell Brayton Konecky, LLP
415-421-7100
DEAF AND HEARING IMPAIRED EMPLOYEES SETTLE
CLASS ACTION LAWSUIT WITH UPS
Disability Rights Advocates, a non-profit legal center based in Berkeley, California together with the civil rights firm Schneider Wallace Cottrell Brayton Konecky, LLP, have reached a proposed settlement in a long-running class action lawsuit with United Parcel Service, Inc., the world’s largest package delivery company. The suit challenged the company’s use of a Department of Transportation (“DOT”) hearing standard as a threshold requirement for all driving positions at the company. Plaintiffs alleged that UPS could not require applicants for driving positions to pass the DOT standard when the job involved driving a vehicle weighing less than 10,000 pounds. UPS asserted that its use of the DOT standard was lawful due to the similar operating characteristics of its vehicles weighing above and below 10,000 pounds. Vehicles weighing 10,000 pounds or less are not subject to DOT regulations. Drivers of vehicles weighing more than 10,000 pounds are required by federal law to pass the DOT hearing standard.
The lawsuit, filed in 1999, was certified by a federal court as a class action in 2001. A trial in 2003 resulted in a court order enjoining UPS from continued use of the DOT hearing standard. A three-judge panel of the Ninth Circuit upheld the injunction, but an en banc panel of the Ninth Circuit reversed, sending the case back to the trial court for further litigation in December 2007.
The proposed settlement creates a Hearing Protocol that will be made available to all UPS employees and applicants with hearing impairments who cannot pass the DOT hearing standard but are otherwise qualified for a driving position. UPS will 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 Hearing Protocol provides otherwise qualified applicants for on-road driving positions who do not pass the DOT hearing standard with audiometric testing and an alternative hearing standard. Those who qualify under the Protocol will participate in UPS’s industry-leading driver training program in a vehicles weighing less than 10,000 pounds. UPS managers providing driver training as part of the Protocol will be specially trained to ensure effective communication throughout the training process. Participants in the Hearing Protocol will also be regularly screened to monitor for changes in hearing loss.
Larry Paradis, Executive Director of Disability Rights Advocates expressed satisfaction with the settlement. “This case raised difficult issues that both the parties and the courts, including the Ninth Circuit, grappled with over the years. In the end, we struck a balance and worked with UPS to develop a compromise that serves the needs of both UPS and the class. We look forward to the Protocol’s implementation.
“UPS remains committed to treating our employees with disabilities, including those with hearing impairments, fairly, while maintaining our unwavering commitment to public safety,” commented Gerry Eaker, UPS Fleet Safety Manager. “The Hearing Protocol that is part of this agreement allows us to achieve both goals simultaneously.
An expert panel composed of experts in the fields of audiology, otology and otolaryngology, UPS employees, and a retired jurist of the California Supreme Court developed the parameters of the Hearing Protocol.
A Preliminary Approval hearing will be held before the Honorable Thelton E. Henderson on June 29, 2009 at 10:00 a.m. in San Francisco’s federal courthouse. The case is Bates et al., v. United Parcel Service, Inc., C 99-2216 (TEH).
