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October 31, 2006 > Watercooler Counsel

Watercooler Counsel

by Rich Proulx

Addled by the ADA

Q:  I just read something about a case in California where a judge ruled that United Parcel Service was discriminating against deaf people by not allowing them to drive their delivery trucks. I just applied for a position delivering soft drinks for a major distributor but they told me I wouldn't be eligible because I have some hearing loss. Can I sue them for discrimination?

Rebuffed and Riled Up
Fremont, CA

A:  Before you march down to court, let me explain some of the more complex elements of that UPS case.  The Appeals Court ruled that UPS violated the Americans with Disabilities Act by categorically excluding people from positions as "package-car drivers" because they could not pass the U.S. Department of Transportation (DOT) hearing test. The catch in this case is that UPS was applying the DOT standard to all applicants for driving positions, but the DOT test is only required for people who drive vehicles weighing more than 10,000 pounds. UPS has over 5,000 vehicles that weigh less than that, meaning they have over 5,000 vehicles which may be driven by someone who has not passed the hearing test.

UPS argued that it was demonstrating vigilant concern for safety. In theory, this was a good position for UPS to take. In reality, it kept individuals with disabilities that prevented them from passing the DOT hearing test from being able to compete for jobs they would have otherwise been qualified for. This is an excellent example of an employer who applies a policy which seems to be neutral but has a discriminatory impact on a certain protected group. In order to prevent this from happening, businesses need to balance their business necessity for a policy with the extent to which it may negatively impact a certain group of people.

In your case, it could be that the trucks you would have been driving were over 10,000 pounds and, therefore, you would have been required to pass the DOT hearing standard.  It seems strange that the company didn't at least give you the test to see if you would pass.  If you think something is fishy, you might call your local EEOC office to discuss the specifics of your case.

Q:  I recently contacted an applicant to a position I have open and invited her to an interview.  Today, I received a letter from her confirming our interview date, but asking for an interpreter because she's apparently deaf.  She even had the audacity to suggest a place where I could find an interpreter.  I was just planning on disregarding her application and looking for someone else

I won't have to shell out money for before the hire, let alone after. But my business partner said he's not so sure about that idea and wanted me to double check. Can you set us straight?

Resentful of a Request
Union City, CA

A:  Danger, Will Robinson! Danger! Thank your partner because he may be saving you from a potential lawsuit. Take a second to think about this... You know from reading our column religiously that there is such a thing as the Americans with Disabilities Act which protects workers and applicants from being treated differently because of their disability.  Obviously, you were impressed enough by this applicant's qualifications to invite her for an interview. If she weren't deaf, the interpreter request wouldn't be an issue and you would still consider her for a position, right? You need to provide the interpreter and give her as much consideration for the position as applicants without disabilities. I suggest you contact the Job Accommodation Network ( for ideas on securing an interpreter and suggestions about how you might accommodate this applicant if you decide she's the best candidate for the job.  Did I tell you to thank your partner?

Our team of government experts believes the only stupid questions are the ones that don't get asked-keep showering us with your queries. The Department of Labor reports that October is National Disability Employment Awareness Month. Send your questions to Rich is a former Supervisory Investigator for the Equal Employment Opportunity Commission  Identifying information in the questions may be fictional.

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