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Paying disabled drivers less than nondisabled drivers for temporary non-driver work, formalized in CBA, violates ADA

By Marjorie Johnson, J.D.

The EEOC won its bid for a permanent injunction barring UPS Freight from continuing its facially discriminatory policy of paying disabled drivers only 90 percent of what nondisabled drivers earned while temporarily performing non-driving jobs. Granting the agency’s motion for judgment on the pleadings, a federal court in Kansas ruled that the facially discriminatory policy, which was contained in its soon-to-expire collective bargaining agreement with the Teamsters union, violated the ADA as a matter of law (EEOC v. UPS Ground Freight, Inc., July 27, 2018, Robinson, J.).

Non-disabled drivers paid full rate. Under a UPS Freight policy that was later formalized in its collective bargaining agreement, drivers with disabilities who were temporarily reassigned to non-driving work for medical reasons were paid 10 percent less than their non-disabled colleagues. Specifically, drivers who were unable to drive for non-medical reasons, including convictions for driving while intoxicated, earned the full (100 percent) pay rate. However, those who performed non-driver work due to medical disqualification, including ADA-qualifying disabilities, earned only 90 percent of the pay rate.

Facially discriminatory? The EEOC sued on behalf of a driver who sought non-driving work after he suffered a minor stroke and was temporarily unable to renew his required Department of Transportation medical examiner’s certificate. In its lawsuit, the EEOC contended both that the company discriminated against the driver based on his disability and that the CBA established a prima facie case of a discriminatory policy since it paid a disproportionate rate of pay to drivers disqualified for medical reasons. At issue was the agency’s motion for judgment on the pleadings on its discriminatory policy claim.

Unambiguous language. Rejecting UPS Freight’s assertion that the EEOC’s interpretation of the CBA was “erroneously selective,” the court found that challenged provisions were instead “plain and unambiguous.” The contract plainly stated that medically disqualified workers who chose to avail themselves to the opportunity for non-driver work would receive 90 percent of pay. It was immaterial whether medically disqualified drivers had other options; “paying employees less because of their disability is discriminatory under any circumstance.” Additionally, the company’s argument that the contract provided an additional opportunity for disabled workers failed to address the pertinent issue—pay at less than 100 percent based on disability.

Case-by-case analysis unnecessary. Moreover, the court did not need to engage in a case-by-case analysis to show that the policy was facially discriminatory for purpose of the EEOC’s pattern-and-practice claim. The agency was required to establish a prima facie case of a discriminatory policy; it did not need to offer evidence that each individual who might seek relief was a victim of the policy. Therefore, since the provisions at issue were facially discriminatory, the court did not need to examine when the CBA worked in favor or against a medically disqualified driver.

Finally, the court was unpersuaded by UPS Freight’s assertion that the CBA did not limit the opportunities available to disabled drivers, but instead provided them with additional opportunities beyond what was required by the ADA. The Supreme Court has held that a benefit “that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free . . . not to provide the benefit at all.”

Irreparable harm. The EEOC also demonstrated that a permanent injunction was warranted. First, medically disqualified drivers suffered irreparable injuries by receiving 10 percent less pay than coworkers who were disqualified for nonmedical reasons. Moreover, monetary damages were inadequate because they could not prevent future harm. Indeed, the only hardship that UPS Freight would suffer was having to pay medically disqualified drivers the 100-percent pay rate, which was what it already paid its non-disabled employees.

Finally, the public interest would not be harmed by a permanent injunction prohibiting UPS Freight from discriminating on the basis of disability. The CBA was set to expire on July 31, 2018, at which time the parties could renegotiate. Given that a new CBA would be implemented, permanent injunctive relief was warranted to prevent the same discriminatory practice under a future agreement.

EEOC applauds result. In an EEOC press release lauding the decision, Andrea G. Baran, EEOC’s regional attorney in the St. Louis District Office said, “The ADA is a powerful legal tool to protect workers from unlawful discrimination based on disability, and the EEOC will vigorously challenge such discriminatory policies and practices. It is also important that the Court ruled UPS Freight’s claim of simply following the terms of its union contract is no defense to violating the law.”

Grant R. Doty, an EEOC senior trial attorney in St. Louis, further praised the decision for its “immediate impact on thousands of UPS Freight’s drivers nationwide who are subject to the policy and union contract.”