thank you your honor i may please the court mark perry for the united parcel service your honor to the united states department of transportation has applied a variety of these ical qualifications standards for the drivers of commercial trucks those standards including the hearing standard issue in this case apply to more than ninety percent of the u p s fleet of more than sixty five thousand vehicles the question in this case is whether  extend the department of transportation's hearing standard to those small number of trucks that are not regulated by the department of transportation the district court ruled that u p s cannot do so and that its attempt to do so in its current policy in which it to vision we do apply the a variance of the federal vision standard to monocular drivers for example and other drivers that cannot meet the o t vision requirement be that litigation has been resolved for the most part on the basis that the affected individuals are not disabled within the meaning of the idea of the score so held there is a remaining piece of it under the california state law the fee high that is currently on appeal to this court and we argued in may before a different panel of the score but the core question applies not only to hearing judge pleasure to go to your point but the wide array of physical standards imposed by the d o t which apply to vision diabetes hypertension employer argued that it should simply be automatically allowed to move it over to flight engineers the supreme court said no it's not conclusive but it is probative and it remained it for a trial on this issue and said the probative value of the federal standard defense on two things one whether the federal standard is based on safety or some other determination and to whether the federal whether the jobs at issue are congruity whether the tasks are the same and it the court cited thurstan for that proposition i think the court meant to cite criswell respectfully because the parent that it will describe in a flight engineers in thurston the t w a flight engineer flight engineers were not at issue is the critical case with that involve this issue unabashedly safety based in fact when the congress an act of the idea directed all federal agencies to take a look at their physical qualifications standards to see if they were consistent with the aid yank the department of transportation twice reviewed the hearing standard first in one thousand nine hundred three in a study conducted by the plaintiff's expert in this case concluded that there was no basis to depart from the standard because there was sufficient evidence that the safety risk govern everything remember d o t d regulation involves more than just the driving requirements every d o t regulated truck has to be registered with the deity extensive paperwork has to be filed the agency test has to review the maintenance records and so forth and the agency said the statute says ten thousand pounds and that's been in the in the on the books around for fifty years it's a historical relic so we're going to do a cut off of fifty put ten thousand pounds for resource allocation purposes then the agency said we think that's consistent with our mission because in this important part most vehicles that way below ten thousand pounds generally have drug safety characteristics similar to passenger cars it does not say that all vehicles or that they always have those characteristics and the evidence in this case the sabbaths on remand that you feel package trucks do not have to characteristics similar to passenger cars they have to characteristics similar to the ten thousand pound trucks regulated by the o c this is nowhere more evident your honor than in the in the p five hundred truck which is a version of the brown package truck you see on the streets of san francisco every day where there are two versions of that truck in the fiesta fleet the bodies are identical they're manufactured by grumman but the chas manufactured by ford one of many affected by g m one with a little over ten thousand pounds one weighs a little under ten thousand pounds the effect of the district court's ruling in this case your honour's is the federal law prohibits a driver who cannot meet the hearing standard from driving the g m version but that u p s is required by by a different federal law to allow the same driver to drive the ford version of vehicle that is an all out respected identical who s weight rating which is the manufacturer's rating for what the truck should weigh fully loaded or the actual weight as it goes out the door it's the higher of the two but the smallest trucks will never weigh over ten thousand pounds because the springs and so forth you know hold them it's also important to no that the the lighter trucks the standards that do not apply to the heavier trucks they do well i think that's the rationale is that the old version of the d o t regulations applied to things like pickup trucks and other just general duty vehicles that were used commercially and the agency said we can't track these millions of vehicles that are on the road there's no reason for us to have them registered and have their maintenance performed a d o t facility i don't think the agency was making any determination that  a regular commercial delivery vehicle whose whose function is in all respects identical to the vehicles that did you see regulate wouldn't be subject to standards and again to bring the court back to the criswell case and that johnson versus baltimore case which our safety experts was of the past are identical no matter how much the truck weighs the task started animal and there was no evidence to the contrary and that easily satisfied the christmas and the error that the district court made on morton prong one your honor is not i can't tell and therefore the tie goes to the plaintiff because you p s has the burden of proof but if the court had given even the mere ist weight to the fact that the department of transportation had promulgated these standards and had the r three o two the evidence is inconclusive as to whether deaf drivers pose an increased risk compared with hearing drivers that's a quote from the opinion basically saying at the time but he gave no reasonable comedy show your honor we have never tried to accommodate a driver that can't meet the d o t hearing standard and the reason for that your honor is that the i o c regulates of the set of rioting or physical qualifications for some of them such as vision and diabetes the agency has determined that that deviations from the strict standard can be made consistent with safety in those cases u p s has adopted revised protocols that allow a few people to drive it's only about one hundred in the whole fleet your honor o those are not all deaf people those are a very small subset of the d o t has twice looked at the question and determined that it could not find a basis on which to further subdivide those individuals into risk categories that go to the second prong of competitors do we don't discuss driver qualifications standards with them i mean that those are our two fiercest competitors and we don't go around sharing what might be comparatively sensitive information it was not develop in the course of this lawsuit why the plaintiff didn't do it scientific research the employer's burden of the idea is not to go out in commission tests and develop computer simulators and do this and that to find out whether the government got it right  i would agree with you your honor if there were no government rule we would have a different case the fact is we do have a government rule and the history of litigation involving the a b a and the driving companies and this goes back to the eighty eight claims to that would have been rodriguez and teamsters but the employers at some level don't have to commission research and that if the evidence is a course that inconclusive then the gov't giving him something that the government this is old title seven requirement to in arlene to drive a an over ten thousand pound commercial vehicle i understand i'm talking but i think these trucks that they want now to try it if you find you can try as i might they have to come to anything else from t m thing and what not so they are our search or circumstances and also it does not allow certain disabled people truck drivers certain circumstances and despite that this does not apply to them your honor i don't believe that there is a california state law prohibition on these people driving the but they called all these with the stance that i want to drive and they never prove that they had any driver's license much less a commercial driver's license they didn't prove that they had a clean driving record they didn't prove that they met any of the we don't know how to reconcile the two people in particular  please the court my name is lawrence parodies my colleague is tired schneider and also here today is barbara sloan from the employment opportunity commission who will be speaking for five minutes we represent the plaintiff following morton said the mere existence of the deity standard on its own is not a sufficient basis and he looked at the actual expert testimony presented by both sides now one thing mr perry said that should be independent obligation to substantiate such an exclusionary policy has to present evidence to justify extending the deal to policy beyond the scope to  it actually measures the abilities of the disabled applicant judge henderson looking at all the evidence including the d o t regulation and the expert testimony and the anecdotal testimony presented by u p s found that there simply was no evidence showing that hearing impaired drivers actually pose a greater risk in that situation the employer and your honor in morning no to the congressional intent was very clear that congress wanted to require to put employers to the test of justifying a knows there's evidence in the record that he has a driver's license five years twenty seven years of experience that he drives a tug on u p i s his own property for four years there is a grievance filed by mr albeit that looked at it was there any reason to think there was anything in his driving record that showed that he was an unsafe driver jenison noted that you p s a challenge the driving record of other class members who testified and over doesn't class members every qualification standard other than just proving the affirmative defense that you p s clearly has i e showing that deaf people pose no greater risk clearly that's an well i wonder about that because here where they've said you can't even apply why should they at this point have to show their vacations all they need to show is that there can that should be enough when you're  cannot meet because of a disability the criterion must concern an essential function of the job and be carefully tailored to measure the actual ability there's no dispute here that u p s has a qualification criteria not it would be a harder case if we have not submitted actual evidence that these two individuals war are qualified in every way except for disproving this affirmative defense but we actually did establish that which makes a much easier case and what u p s is doing here is trying to ask this court of appeals to overturn factual findings genista noted that u p s failed to show that deaf people paucity of information hard to the death drivers but is there are a record with regard to for example the driving record or accident record for hearing herring impaired off employees who don't need to go to standards and now a question of do they get a waiver or not those with a waiver are allowed to drive the over ten thousand pound vehicles the question you p s actually decided voluntarily to it develop less restrictive standards for under ten thousand pound vehicle drivers and it did so by hiring an expert to go and look at what is really needed in terms of vision to drive  you have to justify that and you have to investigate that you p s did hire an expert for this case but judge henderson found that experts testimony to be one sided and should be entirely subjective and simply not persuasive when compared to the objective evidence presented by dr song or who look at all of the crash rate data and all of the objective issues evidence and concluded that there was no reason to think deaf people actually posed a greater risk determining that the teamsters framework was appropriate for an eighty eight class action and or neo seeks to and that the court also correctly applied this standard i am hard time understanding why teachers anything to do with did he looked at the evidence and he said looking at all under that and are looking at the way the idea is framed where there's a burden here for the plaintiffs to show that there's a discriminatory policy one that screams out individuals with policy and it seems to me that what you have to show is that it doesn't judge henderson said the policy doesn't the people screamed out aren't categorically unqualified there are clearly people in this class who can do the minimum can meet the minimum requirements that u p s s for people to drive their trucks they have a driver's license we know there are people who are driver's license jenna morton had a driver's license she met the minimum qualifications to qualifications and they've never been allowed to pastors to step two which is the the world test it's a four step procedure and they've met step one and that's all they've been allowed to do in that showing that unless the employer can show that it's job related inconsistent with business strategy which is to say that a qualification requirement actually measures people's ability to do the job which everyone screened out there's no chance for people with who are death to getting equal employment opportunity which is of course the basic purpose of the idea and also these jobs are pretty scarce if they had to challenge it on having a policy like this deters people who could do the jobs from even working at u p s because why bother the best you can do it right now you can just cabins these people in jobs like orders or loaders they don't get to do i'm very hard time understanding the structure here does this matter if we have two members of the class who actually are qualify so we simply proceed at that point to the merits of the question of whether th in this case was any of this matter i think all that matters your honor i'm stacking right that's that evidence of to that this is all you need you've got what you've got you've got two people you've certainly got two people who are a class injunction you don't lift the injunction even though every single person in the class hasn't at this point in phase one been shown to be a qualified individual with disability if you had to show that which u p s seems to suggest you do situations which is fine except where you've got a black blanket exclusion policy like this which is adversely affecting large numbers of people just not efficient to try to case like that so we think that that dismissed the case because even though these plaintiffs had been subject in the policy they didn't meet the other qualifications because they had too many too many accidents just like mr habib never put in his driving record there's another point your honor mr b does not take driving work a court found that in this is contractually barred from seeking driving work neither of those points has constitutional standing to seek an injunction they couldn't get in individual action they can't get in a class action there is no evidence that any other member of the class is qualified draw the inference against the plaintiffs that if they put in the driving records they would have shown accidents they would have shown moving violations they would have not been able to establish if that's the only reason explain why they didn't meet the burden of proof and if the case comes to this court simply has no can't put on evidence of the available driving jobs in various centers you can't put on evidence of a whole variety of other things this isn't the teamsters case this is an oddly bifurcated trial in which we have now an injunction for u p s to develop a plan that there's no evidence that exists when we may still have a defense to every single class members claims under other defenses available to us some of the yeah including particularly our seniority policies and other aspects of the under hardship offense we suggested as an alternative simply stating the injunction if the court doesn't agree with us we submit in the first place that we did have the business that's the test of the case should be over but if not stay the injunction go back for what's called the face to another see if anybody has actually got a concrete boss in the first place or to obtain relief at the end of the day not because of the policy but because of the non challenge proficient the job is a very complex industry with the union seniority rules and plaintiffs we haven't even got to that part of the case if it is the case that there is no pla ff that can drive yes and there's no evidence that there is any such plaintiff and putting us under an injunction to change our rules when there's been no showing we violated the law is a self would submit unlawful because we haven't got to be in the case yet we've and there are no driving jobs in the o t vehicles in the secondary center where he works so we can drive into i mean these are the problems that are inherent in these cases they are individual lies is not enough to say this is a blanket policy the question is whether it's like a policy actually discriminates against anybody you know awful fashion prohibited by the idea we haven't reached that on this record for a variety of reasons including business especially and we certainly have a long way to go before ever going to reach it we submit that they will never come but we think that so far we