The Ninth Circuit Court of Appeals today released an opinion in BATES v. UPS, No. 04-17295, a federal appeal. The panel consisted of Alex Kozinski, Chief Judge, Mary M. Schroeder, Stephen Reinhardt, Pamela Ann Rymer, Michael Daly Hawkins, Sidney R. Thomas, Barry G. Silverman, M. Margaret McKeown, Raymond C. Fisher, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Richard R. Clifton, Milan D. Smith, Jr., and Sandra S. Ikuta, Circuit Judges.
McKEOWN, Circuit Judge:
This appeal under the Americans with Disabilities Act (ADA) requires us to consider the intersection of a safetybased qualification standard and the “business necessity” defense. United Parcel Service (UPS) imposes a Department of Transportation (DOT) hearing standard on all package-car drivers, even though the DOT standard is federally mandated only for higher-weight vehicles. A class of hearing-impaired UPS employees and applicants who cannot meet the DOT hearing requirement challenges UPS’s policy under Title I of the ADA, 42 U.S.C. Â§Â§ 12101-12213, the California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code Â§Â§ 12900-12996, and the Unruh Civil Rights Act (Unruh Act), Cal. Civ. Code Â§ 51. Bates accepts, as he must, that UPS may lawfully exclude individuals who fail the DOT test from positions that would require them to drive DOT-regulated vehicles, i.e., vehicles exceeding a gross vehicle weight rating (GVWR) of 10,000 pounds. See Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 570 (1999). Bates contends, however, that UPS may not lawfully exclude hearing-impaired individuals from consideration for positions that involve vehicles whose GVWR is less than 10,001 pounds. After a bench trial on liability, the district court found UPS liable on all of Bates’s claims, enjoined UPS from using the blanket qualification standard, and required individualized assessment of candidates for the package-car driver positions. The court founded its analysis on the pattern-or-practice burden-shifting framework of International Brotherhood of. . .
BERZON, Circuit Judge, with whom Circuit Judge REINHARDT joins, concurring in part, dissenting in part, and concurring in the judgment:
I would approach the “qualified individual” and Department of Transportation (DOT) hearing standard inquiries differently than does the majority, but do agree that this case must be remanded for re-examination under the majority’s statement of the business necessity framework. I therefore concur only in Parts I, II, III(A)-(C)(1), III(D), III(E), IV(B), and V of the majority opinion, and in the judgment. nia. Now that the decision in Green has been issued, if the California Supreme Court reaches a different conclusion in Williams than we did in Bass, our holding here will not be the law of the case. See Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986) (writing that a federal appellate court “will follow a state supreme court’s interpretation of its own statute in the absence of extraordinary circumstances”); Ingle v. Circuit City, 408 F.3d 592, 594 (9th Cir. 2005) (holding that a district court abuses its discretion in applying the law of the case doctrine if “an intervening change in the law [has] occurred”). Instead, the California Supreme Court decision will be binding on any later proceedings as they relate to Bates’s Unruh Act claim. . . .