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Court defines standard for pre-employment physicals

Reversing earlier case law, the federal Ninth Circuit Court of Appeals ruled that employees must prove that they are qualified to perform the essential functions of the job with or without reasonable accommodation. Further, based on business necessity, the employer may refuse to hire if an employee is unable to safely perform the job.

In Bates v. United Parcel Service, Inc., UPS required all drivers to pass a hearing test approved by the Department of Transportation. Although the local drivers were not required to meet the DOT standard, the court found all UPS had to prove was that the hearing tests were related to safe driving and that a reasonable accommodation was not available.

The court did not require the employer to meet a bona fide occupational qualification (BFOQ) standard under Title VII discrimination. A BFOQ is a quality or an attribute that employers are allowed to consider when making decisions on the hiring and retention of employees–qualities that, when considered, in other contexts, would be considered discriminatory and thus violating civil rights employment law (such as mandatory retirement ages for bus drivers). This would have been a very difficult standard to apply to an ADA situation.

If a hiring practice has a “disparate impact” on a protected group, a BFOQ defense must be used. For example, if a physical lifting requirement has a disparate impact on women, you would have to use a BFOQ defense. Alternatively, if a lifting requirement has an impact on people with lower back problems, you only have to use the standard ADA defense of determining whether the lifting requirements were created to achieve safe practices and that a reasonable accommodation was not available.