Is Hearing an Essential Function for Delivery Drivers? A Minnesota Court Says, “Maybe”

As package delivery becomes more and more essential to Americans’ everyday life, the demand and requirements for staffing delivery services becomes greater.  However, while delivery companies need staff to complete the growing demand for service, they still have to focus on safety when packages are being delivered, and must enforce reasonable standards for their drivers when it comes to the operation of large vehicles.

The question posed to the District Court in Pagenkopf v. United Parcel Serv., Inc. (D. Minn., 2019) was whether a person with a wealth of experience in package handling, but was also “profoundly deaf,” could safely operate a delivery vehicle.

When the plaintiff in this case communicated with co-workers on the package handling line, he would communicate in writing.  When it was necessary to communicate for longer periods of time, he would use an interpreter provided by the employer.  He also drove himself to work and had no moving violations in over ten years.  After bidding onto a driver position, the plaintiff was able to pass his DOT physical as well as become qualified to drive UPS trucks intrastate with a hearing-impaired exception.  However, despite the fact he bid onto a local route, he was informed by the UPS HR manager that he needed a federal DOT card in order to qualify for his position.  He missed out on the bid.

One year later, the plaintiff actually received an exemption from the FMCSA, and received his DOT certification.  He bid onto two more open driver positions, and on his second try, passed the driving test, when the instructor communicated with him by writing on a tablet and using gestures, as well as directing the plaintiff to pull over to give extended direction.  He was allowed into the UPS new driver training program.

Despite his acquiring DOT certification as well as passing the driving test, UPS denied Pagenkopf promotion.  The company cited four issues for denying the promotion based on inability to accommodate his clear limitation: inability to interact with customers; inability to communicate through locked doors; inability to hear a horn blast; and inability to hear communication from the home office while he was on the road.  UPS rejected all offers to utilize technology to communicate with him with digital devices, such as over video relay.  It also rejected more simple means of communication for customers, such as providing him with a pad and pencil.  After the plaintiff was rejected for a driver job for the fourth time, he filed suit against UPS in 2017.

Pagenkopf’s claims included failure to promote, failure to accommodate, and failure to engage in the interactive process under the Minnesota Human Rights Act as well as claims under the ADA.  A summary judgment motion was heard by the court.  Not surprisingly, the court found a question of material fact as to whether the plaintiff could perform the essential function of customer communication with or without reasonable accommodation.  Critical to the decision, the plaintiff had provided UPS with a list of different technologies that assist the deaf in communication with others, many of which were free and could be used on any smartphone.  This was enough to take the case to the jury.

Employers need to be open to alternative arrangements for employees who suffer from different restrictions.  While they may have an ideal candidate who is capable of performing every aspect of a position in mind, employers need to be flexible in working with candidates who could perform all the essential functions of a position, safely, in a possibly unorthodox fashion.  The focus should be on the work getting done, rather than the worker.

If you need any assistance with any part of the accommodation process with your employees, please contact the experienced attorneys at the Wiley Law Office, for advice that works.