                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ERIC BATES; BERT ENOS;                     
BABARANTI OLOYEDE; ERIC
BUMBALA; EDWARD WILLIAMS, on
behalf of themselves and all others               No. 04-17295
similarly situated,
                 Plaintiffs-Appellees,             D.C. No.
                                                CV-99-02216-THE
                  v.                               OPINION
UNITED PARCEL SERVICE, INC., dba
UPS,
               Defendant-Appellant.
                                           
        Appeal from the United States District Court
            for the Northern District of California
       Thelton E. Henderson, District Judge, Presiding

                  Argued and Submitted
       September 15, 2005—San Francisco, California

                      Filed October 10, 2006

       Before: Betty B. Fletcher, John R. Gibson,* and
              Marsha S. Berzon, Circuit Judges.

                    Opinion by Judge Berzon




   *The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.

                                17473
               BATES v. UNITED PARCEL SERVICE           17477


                         COUNSEL

Christopher J. Martin and Rachel S. Brass, Gibson, Dunn &
Crutcher LLP, Palo Alto, California, Mark A. Perry and
Rachel A. Clark, Gibson, Dunn & Crutcher LLP, Washington,
D.C., for the defendant-appellant.

Laurence W. Paradis and Caroline A. Jacobs, Disability
Rights Advocates, Oakland, California, Todd M. Schneider
and W.H. Willson, Schneider & Wallace, San Francisco, Cali-
fornia, for the plaintiffs-appellees.

Claudia Center and Lewis Bossing, The Legal Aid Society —
Employment Law Center, San Francisco, California, for amici
curiae American Association of People with Disabilities et al.
17478              BATES v. UNITED PARCEL SERVICE
Ann Elizabeth Reesman, McGuiness Norris & Williams, LLP,
Washington, D.C., for amicus curiae Equal Employment
Advisory Council.

Barbara L. Sloan, Equal Employment Opportunity Commis-
sion, Washington, D.C., for amicus curiae Equal Employment
Opportunity Commission.


                                OPINION

BERZON, Circuit Judge:

   This case concerns whether United Parcel Service (UPS)
may categorically exclude individuals from employment posi-
tions as “package-car drivers” because they cannot pass a
United States Department of Transportation (DOT) hearing
standard that does not apply to the vehicles in question. A
class of UPS employees and applicants unable to pass the
DOT hearing standard — a class we refer to throughout this
opinion as “Bates” (the last name of the original class’s lead
plaintiff) — contends that this policy violates the Americans
with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and
two California laws: (1) the Fair Employment and Housing
Act (FEHA), CAL. GOV’T CODE §§ 12900-12996; and (2) the
Unruh Civil Rights Act (Unruh Act), CAL. CIV. CODE § 51.

  After the first phase of a bifurcated trial, the district court
held in a detailed opinion that UPS violated the ADA, the
FEHA, and the Unruh Act, and ordered injunctive relief.1 At
  1
    The district court decision briefly mentions California Government
Code Section 12920, which is part of the FEHA and provides, in pertinent
part, that “[i]t is hereby declared as the public policy of this state that it
is necessary to protect and safeguard the right and opportunity of all per-
sons to seek, obtain, and hold employment without discrimination or
abridgment on account of . . . physical disability.” The district court deci-
sion noted that “a violation of Plaintiffs’ rights under federal and state
                   BATES v. UNITED PARCEL SERVICE                    17479
the same time, the district court denied UPS’s motion for
judgment on partial findings or, in the alternative, for class
decertification. On appeal, UPS contends that (1) Bates did
not establish that any class members are “qualified”; (2) UPS
satisfied its burden under the business necessity defense of the
ADA; (3) the plaintiff class should be decertified; (4) the
court’s injunction was an abuse of discretion; and (5) UPS did
not violate the FEHA or the Unruh Act.

   Much of the basic legal ground covered in this appeal was
covered in Morton v. United Parcel Service, Inc., 272 F.3d
1249 (9th Cir. 2001), a case in which another deaf UPS
employee challenged the company’s use of the DOT hearing
standard for smaller vehicles to which the standard does not
apply. Because, unlike this case, Morton came to us on sum-
mary judgment, we did not resolve the validity of UPS’s use
of the DOT hearing standard. We did, however, spell out
some of the applicable legal principles, including burdens of
proof, for deciding the question on a completely developed
record. There is such a record here. On that record, we affirm
the district court’s factual findings as not clearly erroneous
and its holding that UPS violated the ADA as consistent with
the applicable legal standards. We also affirm the district
court’s denial of UPS’s motion to decertify the class and the
terms of the injunction issued. Because the district court’s
injunction can be upheld on ADA grounds alone and because
the pertinent FEHA law has changed since the district court’s
decision, we do not at this time review the FEHA claim.
Finally, we reverse the district court’s finding that UPS vio-

anti-discrimination statutes would clearly violate the public policy of pro-
tecting such rights.”
  It appears that the district court relied on Section 12920 only for public
policy informing its interpretation of FEHA, not as the basis for a separate
cause of action. We therefore do not consider whether Section 12920
could be the basis for a separate cause of action either under the FEHA
or in tort.
17480             BATES v. UNITED PARCEL SERVICE
lated the Unruh Act, as a recent decision by this court requires
us to do so.

                          I.   Background

   UPS package-car drivers deliver and pick up packages for
UPS in the familiar brown UPS trucks. An individual who
wishes to become a UPS package-car driver must be an
employee of UPS in a qualifying position and must “bid” on
a package-car driving position. When an opening for a driving
position becomes available at a particular UPS center, UPS
contacts the individual in that UPS center with the highest
seniority who has bid on such a position.2 If that person is not
interested, the human resources department moves down the
list of individuals who have bid on a position in seniority
order until it finds an employee interested in the position.
Once UPS has located such an employee, that individual must
demonstrate that she satisfies several requirements. The
requirements vary somewhat from district to district but gen-
erally include (1) having completed an application; (2) being
at least twenty-one years of age; (3) possessing a valid driv-
er’s license; (4) having a “clean driving record”; (5) passing
a UPS road test; and (6) passing the physical exam the DOT
requires drivers of commercial vehicles to pass. Standards for
the “clean driving record” requirement vary, but a common
one is that a driver not have more than three moving viola-
tions or any convictions for driving while intoxicated within
the previous three years. If an applicant demonstrates that she
satisfies all of these requirements, she proceeds to driver
training, after which she begins a probationary period. Upon
successful completion of the probationary period, she
becomes a package-car driver.

  At issue in the present appeal is the hearing standard that
  2
   UPS is divided into sixty-one districts, each of which includes various
package delivery “centers” covering different geographical areas.
               BATES v. UNITED PARCEL SERVICE            17481
is part of the DOT physical. An individual satisfies the DOT
hearing standard if she

    [f]irst perceives a forced whispered voice in the bet-
    ter ear at not less than 5 feet with or without the use
    of a hearing aid or, if tested by use of an audiometric
    device, does not have an average hearing loss in the
    better ear greater than 40 decibels at 500 Hz, 1,000
    Hz, and 2,000 Hz with or without a hearing aid when
    the audiometric device is calibrated to American
    National Standard (formerly ASA Standard) Z24.5-
    1951.

49 C.F.R. § 391.41(b)(11). According to the district court, the
forced-whispered standard requires that potential drivers not
only hear the sounds made but understand the words spoken.

   Although UPS requires drivers of all package cars to pass
the DOT physical, the DOT does not so mandate. Instead, the
DOT requires it only for those driving vehicles with a “gross
vehicle weight” or “gross vehicle weight rating” (GVWR) of
at least 10,001 pounds. See 49 U.S.C. § 31132(1)(A); 49
C.F.R. § 391.41. A vehicle’s “gross vehicle weight” is the
actual weight of the vehicle plus any cargo in the vehicle. A
vehicle’s GVWR is determined by the manufacturer and is
equal to the sum of the weight of the vehicle and the maxi-
mum load the manufacturer believes the vehicle can carry. As
of October 2003, UPS’s fleet contained 5902 vehicles with a
GVWR of less than 10,001 pounds. The GVWR of those
vehicles ranged from 7160 pounds to 9318 pounds.

  The class accepts, as it must, that UPS may lawfully
exclude individuals who fail the DOT test from positions that
would require them to drive DOT-regulated vehicles. See
Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 570 (1999).
Bates contends, however, that UPS may not lawfully exclude
deaf individuals from consideration for positions that require
17482            BATES v. UNITED PARCEL SERVICE
them to drive only vehicles whose gross vehicle weight and
GVWR are less than 10,001 pounds.

   The district court found that Bates satisfied his prima facie
case based upon a combination of two factors: first, UPS’s
blanket exclusion of deaf individuals, and second, the creden-
tials of at least one named plaintiff, Babaranti Oloyede, and
at least one class member, Elias Habib, who were “qualified”
by virtue of having satisfied all prerequisites for the driving
position other than those connected to the DOT standard. The
court further concluded that Bates did not have the burden to
establish at this stage that any plaintiffs were “qualified” in
the sense that they are capable of driving safely. Accordingly,
the district court denied UPS’s motion to decertify the class,
rejecting UPS’s argument that the class lacked a representa-
tive qualified for the driving positions in question.3

   The district court next found that UPS failed to satisfy its
burden under the business necessity defense and that the pol-
icy, therefore, violates the ADA (and, accordingly, the FEHA
and the Unruh Act as well. Based on these conclusions, the
district court issued an injunction prohibiting UPS from cate-
gorically excluding individuals who fail the DOT standard
from consideration for positions driving non-DOT-regulated
vehicles.

                         II.   Jurisdiction

   UPS appeals pursuant to 28 U.S.C. § 1292(a)(1), which
grants us jurisdiction over “[i]nterlocutory orders of the dis-
trict courts . . . granting . . . injunctions . . . , except where a
direct review may be had in the Supreme Court.” UPS’s
appeal of the district court’s order granting a permanent
injunction falls squarely within the scope of § 1292(a)(1). We
  3
   The district court’s findings of fact on this and other matters are
reviewed in greater detail later, as they become pertinent.
                   BATES v. UNITED PARCEL SERVICE                    17483
therefore have jurisdiction under § 1292(a)(1) to review the
district court’s injunctive order.

   Section 1292(a)(1) also grants us jurisdiction to review the
legal and factual decisions made by the district court that
underlie its injunctive order where — as here — those issues
“are inextricably bound up with the injunction.” See Idaho
Watershed Project v. Hahn, 307 F.3d 815, 824 (9th Cir.
2002); TransWorld Airlines, Inc. v. Am. Coupon Exch., Inc.,
913 F.2d 676, 680 (9th Cir. 1990); Marathon Oil Co. v.
United States, 807 F.2d 759, 764 (9th Cir. 1986). Such review
is particularly appropriate in cases like the present one, in
which the appeal is taken from a permanent, rather than pre-
liminary, injunction and “[t]he district court has completed its
consideration of the liability issue, retaining jurisdiction only
for an accounting of damages.” See Marathon, 807 F.2d at
764. Because the district court’s legal authority to grant the
injunction stemmed from its holding that UPS violated the
ADA and the California laws, those holdings are “inextricably
bound up” with its injunction. We therefore have jurisdiction
to review the district court’s liability determinations under
§ 1292(a)(1).

   Similarly, § 1292(a)(1) provides us with jurisdiction to
review the denial of UPS’s motion on partial findings as well
the denial of its motion for class decertification; like the lia-
bility determinations, these motions, too, are “inextricably
bound up” with the injunction.4 See Paige v. California, 102
F.3d 1035, 1039-40 (9th Cir. 1996) (holding that when a class
certification order and an injunction granting class-wide relief
are appealed, courts have jurisdiction under § 1292(a)(1) over
  4
    Bates contends that we lack jurisdiction over the district court’s denial
of the motion for judgment on partial findings because UPS did not seek
certification of the issue pursuant to 28 U.S.C. § 1292(b), but his argument
is mistaken. When we have jurisdiction pursuant to § 1292(a), litigants
need not also meet the requirements of § 1292(b). See Armstrong v. Wil-
son, 124 F.3d 1019, 1021 (9th Cir. 1997); TransWorld Airlines, 913 F.2d
at 680.
17484              BATES v. UNITED PARCEL SERVICE
the class certification order because it is “inextricably bound
up” with the injunction); Immigrant Assistance Project of L.A.
County Fed’n of Labor (AFL-CIO) v. INS, 306 F.3d 842, 869
(9th Cir. 2002).5

                     III.   “Qualified” Inquiry

  UPS argues that, to establish a “prima facie case,” Bates
must satisfy all job prerequisites other than the challenged
DOT standard and prerequisites related to that standard (such
as completing UPS’s driving test and driving training), and
must also demonstrate an ability to drive “safely.” This argu-
ment is based on the ADA’s definition of a “qualified individ-
ual with a disability” as “an individual with a disability who,
with or without reasonable accommodation, can perform the
essential functions of the employment position that such indi-
vidual holds or desires.” 42 U.S.C. § 12111(8). See, e.g., Ken-
nedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)
(“A plaintiff bears the burden of demonstrating that she can
perform the essential functions of her job with or without rea-
sonable accommodation.”). The district court rejected this
argument, and so do we.
  5
    We reject Bates’ argument that we may not review the denial of the
class decertification motion, Paige and Immigrant Assistance Project not-
withstanding, because UPS did not petition for permission to appeal that
decision within the ten-day deadline imposed by Federal Rule of Civil
Procedure 23(f) for review of class certification decisions not otherwise
appealable. (UPS did apply to us for permission to appeal the original
class certification order pursuant to Rule 23(f), but we denied the applica-
tion.) Nothing within the language of the Rule 23(f), its authorizing statute
(28 U.S.C. § 1292(e)), or its history indicates that it is meant to provide
the exclusive route to obtaining appellate review or to impose time limits
on interlocutory appeals proper under other statutory provisions. See
Chamberlan v. Ford Motor Co., 402 F.3d 952, 957 (9th Cir. 2005) (inter-
nal quotation marks omitted) (surveying the purposes of Rule 23(f)); Blair
v. Equifax Check Servs., Inc., 181 F.3d 832, 833-35 (7th Cir. 1999) (sur-
veying the history of Rule 23(f) and observing that it was meant to expand
appellate jurisdiction).
                   BATES v. UNITED PARCEL SERVICE                    17485
   Initially, we note that we do not agree with the district
court’s conclusion that International Brotherhood of Team-
sters v. United States, 431 U.S. 324 (1977), is pertinent to this
case. Unlike cases involving individual or pattern-and-
practice disparate treatment, see, e.g., McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 800-03 (1973) (individual
disparate-treatment case); Int’l Bhd. of Teamsters, 431 U.S. at
334-36 (pattern-or-practice disparate-treatment case), this
case involves an employer’s facially discriminatory policy.
As a result, a burden-shifting protocol is unnecessary. The
fact to be uncovered by such protocols — whether the
employer discriminated on a proscribed basis — already has
been admitted. See Monette v. Elec. Data Sys. Corp., 90 F.3d
1173, 1182-83 (6th Cir. 1996) (noting that when a defendant
admits to taking account of disability status, the McDonnell
Douglas burden-shifting framework is unnecessary).6

   For reasons developed below, however, we agree with UPS
that, to maintain this suit, Bates must establish that at least
one named plaintiff is “qualified” in the sense that the named
plaintiff satisfied all prerequisites other than those connected
to the DOT standard. Such a showing is necessary to establish
the class’s statutory standing to bring a lawsuit under the
ADA. See Melendez v. Ill. Bell Tel. Co., 79 F.3d 661, 668 (7th
Cir. 1996) (similarly recharacterizing as a standing contention
a defendant’s contention that a plaintiff in a disparate impact
Title VII case did not establish she was “qualified” as part of
her prima facie case). But, we do not agree with UPS that
Bates also bears the burden of establishing that at least one
class member is “qualified” in the sense that he can drive
“safely.” We reject that contention as structurally incompati-
  6
    Moreover, whether a plaintiff established a prima facie case in the
employment discrimination burden-shifting sense is moot after trial. At
that point, the relevant inquiry is simply whether the evidence presented
at trial supports a finding of a violation. See U.S. Postal Serv. Bd. of Gov-
ernors v. Aikens, 460 U.S. 711, 715 (1983); Costa v. Desert Palace, Inc.,
299 F.3d 838, 855-56 (9th Cir. 2002) (en banc), aff’d, 539 U.S. 90 (2003).
17486              BATES v. UNITED PARCEL SERVICE
ble with the statute’s affirmative business necessity defense,
as will appear.

                          A.    Prerequisites

   [1] The question of whether there is a named plaintiff who
may maintain this suit turns, in the first instance, on whether
there is such an individual who has statutory standing to pur-
sue this litigation. Title I of the ADA states that “any person
alleging discrimination on the basis of disability in violation
of any provision of this chapter” shall have the “powers, rem-
edies, and procedures set forth” in, inter alia, 42 U.S.C.
§ 2000e-5, which applies to Title VII employment discrimina-
tion claims. 42 U.S.C. § 12117(a). Section 2000e-5, in turn,
provides that any “person claiming to be aggrieved” may
bring suit. § 2000e-5(f)(1). The Sixth Circuit has stated that
“such broad language in the enforcement provision” of the
ADA “evinces a congressional intention to define standing to
bring a private action . . . as broadly as is permitted by Article
III of the Constitution.” MX Group, Inc. v. City of Covington,
293 F.3d 326, 334 (6th Cir. 2002)) (internal quotation marks
omitted) (considering Title II of the ADA and the Rehabilita-
tion Act, the former of which uses the “person alleging dis-
crimination” language in its enforcement provision and the
latter of which uses the “person aggrieved” language in its
enforcement provision). We agree with the Sixth Circuit that
to establish standing in this case under the ADA, Bates need
only establish the same prerequisites needed for Article III
standing.7 See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992) (holding that a plaintiff must fulfill three
   7
     We do not decide whether prudential concerns limit third-party stand-
ing under the ADA, as that issue is not before us. Bates alleges that class
members, not third parties, were the victims of the discrimination at issue.
See Leibovitz v. N.Y. City Transit Auth., 252 F.3d 179, 186 (2d Cir. 2001)
(declining to decide the same issue in a Title VII case for similar reasons);
Patee v. Pac. Nw. Bell Tel., 803 F.2d 476, 478 (9th Cir. 1986) (holding
that prudential concerns limit standing in Title VII cases).
                   BATES v. UNITED PARCEL SERVICE                    17487
requirements — injury in fact, causation, and redressability —
to establish Article III standing).

   [2] When the plaintiff is a class, the class must establish
that at least one named plaintiff has standing in order for the
entire class to have standing. See Casey v. Lewis, 4 F.3d 1516,
1519, 1524 (9th Cir. 1993). Our question, therefore, is
whether Oloyede meets the statutory standing requirement.8
Our inquiry is limited to the first prong of analysis9 —
namely, whether Oloyede suffered an injury because of the
categorical bar posed by the DOT hearing standard that is suf-
ficiently “concrete and particularized” and “actual or immi-
nent” to satisfy the “injury in fact” requirement. See Lujan,
504 U.S. at 560-61.

   Determining whether Oloyede was “injured” requires
examining whether Oloyede was “qualified” for the driving
position he desired in the sense that, aside from the DOT stan-
dard he is challenging and all prerequisites connected to that
standard, he meets the basic job requirements for the desired
position. In Melendez, the Seventh Circuit held that, to estab-
lish standing to bring a Title VII disparate impact case, a
plaintiff show she is “qualified” in this same sense, reasoning:

     Absent direct evidence showing that a plaintiff was
     not hired . . . because of a discriminatory employ-
     ment practice, we assume that an unqualified plain-
     tiff was not hired or promoted for the obvious reason
     — that he was unqualified. Such a plaintiff would
   8
     Because we affirm the district court’s findings of fact with respect to
Oloyede, we do not consider the district court’s findings with respect to
Habib.
   9
     The second and third elements of the standing test are not at issue. If
Oloyede suffered injury, there was a causal connection between that injury
and UPS’s policy, and the injury is redressable at least by appropriate pro-
spective relief. Whether retrospective damages will be available is a ques-
tion not yet decided by the district court, so we do not address the
question.
17488           BATES v. UNITED PARCEL SERVICE
    have no standing to sue . . . , for he could not claim
    that he was injured, much less affected, by defen-
    dant’s use of an employment practice with an alleg-
    edly disparate impact.

79 F.3d at 668; see also Coe v. Yellow Freight Sys., Inc., 646
F.2d 444, 451 (10th Cir. 1981) (holding the same). Similarly,
absent evidence that a plaintiff challenging a facially discrimi-
natory qualification standard in an ADA case fulfilled those
prerequisites for the position not connected to the challenged
qualification standard, the plaintiff could not claim he was
aggrieved by the challenged qualification standard. Cf. Long
v. Coast Resorts, Inc., 267 F.3d 918, 924 (9th Cir. 2001)
(holding that plaintiffs did not have standing as “person[s]
aggrieved” to challenge alleged ADA violations affecting
only employees of a casino because plaintiffs were not them-
selves employees); Casey, 4 F.3d at 1524 (holding that a class
of prison inmates failed to establish that any named plaintiff
suffered actual injury from a prison policy prohibiting HIV-
positive individuals from obtaining employment in its food-
service department because the class did not show that any
named plaintiff was HIV-positive, was interested in a food-
service job, or applied for one).

   Here, the district court found as a fact, based on the record
before it, that “Oloyede’s qualifications are sufficient to allow
[him] to proceed to the next step of UPS’s driver evaluation
and training.” The district court based this ultimate conclusion
on, inter alia, its finding that Oloyede’s driving record at the
time of trial satisfied the “clean driving record” requirement
in the pertinent UPS district, which states that individuals
must have no accidents or moving violations within the previ-
ous year, no convictions for driving while intoxicated within
the previous three years, and no more than three moving vio-
lations in the previous three years.

  In addition, the district court found that Oloyede has been
employed by UPS since 1991 and that he first bid on a driving
                   BATES v. UNITED PARCEL SERVICE                   17489
position in 1998, when, the record establishes, he held a job
from which he was qualified to bid on a driver position.10
Oloyede has bid on or expressed an interest in driving posi-
tions several times since then, most recently in 2003. Oloyede
currently has an “Article 22.3” position, which, according to
the record, means that he is currently contractually barred
from bidding on driving positions. The district court found,
however, that in 2000, Oloyede’s supervisor told him that he
would need to pass a hearing exam to become a package-car
driver. The court further found that, in general, “[i]f an appli-
cant cannot satisfy the DOT hearing standard, he or she will
not be allowed to move on to UPS’s driver training,” indicat-
ing that no direct assessment of Oloyde’s driving ability was
ever made.

   [3] That Oloyede is not currently employed in a position
from which he is eligible to bid for a driving job is of no
moment. Oloyede was informed that he could not drive for
UPS under any circumstances. As a result, he was deterred
from remaining in a driver-eligible position and sought
instead to advance his career in some other fashion. An indi-
vidual thus influenced by an allegedly discriminatory policy
to avoid humiliating circumstances — here, languishing in a
dead-end position — is still aggrieved by that policy if he
maintains a continuing interest in the benefit to which access
has been denied — here, the opportunity to be individually
assessed for the package-car driver position. That Oloyede
accepted a position prohibiting him from applying for a job he
knew he could not have does not detract from the conclusion
that he was injured by the policy he challenges. See Pickern
v. Holiday Quality Foods Inc., 293 F.3d 1133, 1137-38 (9th
Cir. 2002) (holding that a disabled individual deterred from
patronizing a public accommodation due to a defendant’s fail-
  10
     The class certified by the district court covers individuals who “have
been employed by and/or applied for employment with United Parcel Ser-
vice (UPS) at any time since June 25, 1997 up through the conclusion of
this action.”
17490              BATES v. UNITED PARCEL SERVICE
ure to comply with the ADA has suffered an “injury in fact”);
cf. Teamsters, 431 U.S. at 365 (“If an employer should
announce his policy of discrimination by a sign reading
‘Whites Only’ on the hiring-office door, his victims would not
be limited to the few who ignored the sign and subjected
themselves to personal rebuffs.”).11 How Oloyede’s injury is
to be remedied if found to result from a violation of the ADA
is a question to be addressed at the relief stage, but does not
affect his ability to challenge the DOT standard that stood in
the way of his desired advancement.12

                        B.   Driving “Safely”

   UPS suggests that beyond compliance with prerequisites
unconnected to the DOT standard, Bates also bears the burden
of proving that at least one individual in the class was a “qual-
ified individual with a disability” in the sense of being able
to perform the “essential function” of driving “safely.” We
reject that contention as inconsistent with the language of the
ADA.
  11
      UPS also maintains that there is no “evidence in the record that
Oloyede had the requisite seniority to drive at his facility before becoming
an Article 22.3 employee.” This fact, even if true, is also of no moment,
as UPS’s policy does not require a certain level of seniority, but rather
encompasses a seniority preference.
   12
      For similar reasons, UPS’s contention that the “claims or defenses” of
Oloyede are not “typical of the claims or defenses of the class,” as
required by Federal Rule of Civil Procedure 23(a)(3), fails. Citing East
Texas Motor Freight System, Inc. v. Rodriguez, UPS contends that
Oloyede must be “qualified” in the sense that he satisfied the basic prereq-
uisites for the driving position and thus is “typical” of the class and sub-
class he seeks to represent. See 431 U.S. 395, 403 (1977).
  We review class certification decisions for abuse of discretion, see
Smith v. Univ. of Wash., Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000),
and hold — for the reasons recited in the text — that the district court did
not abuse its discretion by finding Oloyede qualified in the pertinent sense
and hence “typical.”
                  BATES v. UNITED PARCEL SERVICE                  17491
       1.   Statutory Provisions and UPS’s Contentions

   Subsection (a) of § 12112 of the ADA, headed “General
rule,” provides the following: “No covered entity shall dis-
criminate against a qualified individual with a disability
because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge
of employees, employee compensation, job training, and other
terms, conditions, and privileges of employment.”13 Subsec-
tion (8) of § 12111 defines a “qualified individual with a dis-
ability” as “an individual with a disability who, with or
without reasonable accommodation, can perform the essential
functions of the employment position that such individual
holds or desires.” § 12111(8).

   Subsection (b) of § 12112, headed “Construction,” states
that “[a]s used in subsection (a) of this section, the term ‘dis-
criminate’ includes” seven types of employer actions — as
pertinent here,

       using qualification standards, employment tests or
       other selection criteria that screen out or tend to
       screen out an individual with a disability or a class
       of individuals with disabilities unless the standard,
       test or other selection criteria, as used by the covered
       entity, is shown to be job-related for the position in
       question and is consistent with business necessity.14

42 U.S.C. § 12112(b)(6).

  Section 12113(a), headed “In general,” describes the
defenses available to employers:
  13
      The parties agree that UPS is a “covered entity” within the meaning
of § 12111(2), (5) and that individuals who cannot pass the DOT hearing
standard are “disabled” within the meaning of § 12102(2).
   14
      Bates does not challenge UPS’s standard under § 12112(d), which
covers in detail the propriety of medical examinations under the ADA. We
therefore do not reach how § 12112(d) might apply in the present case.
17492           BATES v. UNITED PARCEL SERVICE
    It may be a defense to a charge of discrimination
    under this chapter that an alleged application of qual-
    ification standards, tests, or selection criteria that
    screen out or tend to screen out or otherwise deny a
    job or benefit to an individual with a disability has
    been shown to be job-related and consistent with
    business necessity, and such performance cannot be
    accomplished by reasonable accommodation, as
    required under this subchapter.

   [4] UPS’s hearing standard is clearly a “qualification stan-
dard[ ] . . . that screen[s] out . . . a class of individuals with
disabilities,” § 12112(b)(6). On its face, the standard excludes
individuals whom the parties agree are “disabled” from con-
sideration for driving positions. Thus, UPS’s use of the hear-
ing standard is “discrimination” under § 12112(b)(6), “unless
the standard . . . is shown to be job-related for the position in
question and is consistent with business necessity.”
§ 12112(b)(6).

   [5] The word “unless” suggests that UPS bears the burden
under § 12112(b)(6) of establishing that the standard is job-
related and consistent with business necessity. See NLRB v.
Ky. River Cmty. Care, Inc., 532 U.S. 706, 711 (2001) (stating
the “general rule of statutory construction that the burden of
proving justification or exemption under a special exception
to the prohibitions of a statute generally rests on one who
claims its benefits” (internal quotation marks omitted)). We
have noted that “the two versions of the general business
necessity defense,” in §§ 12112(b)(6) and 12113(a), are “in-
tended to encompass the same basic requirements,” Morton,
272 F.3d at 1257 n.8, and have held that the burden of prov-
ing that a qualification standard is job-related and consistent
with business necessity under § 12113(a) falls squarely on the
defendant, see id. at 1258; Cripe v. City of San Jose, 261 F.3d
877, 890 (9th Cir. 2001). It follows that the defendant has the
burden of establishing that a qualification standard is job-
                    BATES v. UNITED PARCEL SERVICE                       17493
related and consistent with business necessity under both
§§ 12112(b)(6) and 12113(a).

   UPS argues, however, that even if this is so, plaintiffs must
first establish that the challenged standard excludes individu-
als who can perform the “essential function” of driving “safe-
ly.” UPS’s argument is premised on: (1) § 12112(a)’s
statement that “[n]o covered entity shall discriminate against
a qualified individual with a disability”; (2) § 12111(8)’s defi-
nition of “qualified individual with a disability” as “an indi-
vidual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires”;
and (3) our cases holding that plaintiffs ordinarily must estab-
lish that they are “qualified individuals with disabilities.” See,
e.g., Kennedy, 90 F.3d at 1481. If UPS were correct, then, as
a practical matter, the plaintiff would bear the burden of prov-
ing that a categorical and specific safety qualification is not
valid under the statute, by showing that at least some individ-
uals who cannot meet it are capable of driving safely. That
distribution of the burden of proof in a case such as this one
is incompatible with the statutory scheme.

                        2.    Statutory Analysis

   Section 12112(a) does not stand alone in the ADA. Section
12112(b), which includes § 12112(b)(6), is headed “Construc-
tion”15 and begins with, “As used in subsection (a) . . . the
term ‘discriminate’ includes . . . .” Section 12112(b)(6) thus
describes one instance of what constitutes unlawful “dis-
criminat[ion]” under the statute — “using qualification stan-
dards . . . that screen out or tend to screen out an individual
with a disability or a class of individuals with disabilities
  15
     While “the heading of a section cannot limit the plain meaning of the
text,” “[f]or interpretative purposes, [the heading of a section is] of use . . .
when [it] shed[s] light on some ambiguous word or phrase.” Bhd. of R.R.
Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 529 (1947).
17494              BATES v. UNITED PARCEL SERVICE
unless the standard . . . is shown to be job-related for the posi-
tion in question and is consistent with business necessity.”

   Critically, § 12112(b)(6) and its parallel affirmative
defense, § 12113(a), apply where “an individual with a dis-
ability,” not a “qualified individual with a disability,” is
excluded. It is this statutory provision, and not the ones UPS
cites, that properly guide our analysis. Plaintiffs thus do not
bear the burden under § 12112(b)(6) of proving that individu-
als who cannot meet the qualification standard nevertheless
are “qualified” with regard to the essential job function the
standard addresses — here, safety.16

   We took a similar approach to interpreting another provi-
sion of the ADA in Fredenburg v. Contra Costa County
Department of Health Services, which held that individuals
need not be “qualified individuals with disabilities” to bring
a challenge to a medical examination under § 12112(d)(4).
172 F.3d 1176, 1182 (9th Cir. 1999). We so held even though
Section 12112(d)(1) provides that “In general,” “[t]he prohibi-
tion against discrimination as referred to in subsection (a) of
this section shall include medical examinations and inquiries.”
Fredenburg emphasized that the particular prohibition con-
tained in Section 12112(d)(4) concerning medical examina-
tions “refer[s] to ‘employees’ . . . not ‘qualified individuals
with a disability.’ ” Id. Here, as in Fredenburg, the directly
pertinent statutory section does not refer to “qualified individ-
uals with disabilities.” Rather, that section — § 12112(b)(6)
— refers to “individuals with disabilities.” (emphasis added).
  16
    Moreover, the ability to drive “safely,” while critically important for
a commercial driver, is not a self-defining quality. All employers tolerate
some risk of vehicle accidents, and each evaluates that risk in its own way.
Where, as here, the employer bars employees because of their disability
from any individualized assessment of their safe driving ability, employ-
ees cannot be expected to establish through different criteria, not used by
the employer, that they are safe to some unspecified degree.
                BATES v. UNITED PARCEL SERVICE              17495
   We recognize that § 12112(b) states that “[a]s used in sub-
section (a), the term ‘discriminate’ includes” the employer
actions described in subsections (b)(1) through (b)(7). One
might argue, therefore, that § 12112(b)(6) elaborates only on
the single word “discriminate” used in § 12112(a), and that
§ 12112(a)’s requirement that discrimination be directed
against “qualified individuals with disabilities” still applies
even when § 12112(b)(6) — or any other subsection of
§ 12112(b) — is at issue. Examination of the other subsec-
tions of § 12112(b) and of the role of § 12112(b)(6) in the
statute as a whole leads us to conclude that this understanding
of the statute is untenable.

   First, the imposition of a requirement that all ADA Title I
plaintiffs initially establish that they are “qualified individuals
with disabilities” would be utterly incoherent with regard to
one of the other subsections, § 12112(b)(4). That section pro-
hibits discrimination against a “qualified individual” known
to associate with an individual with a disability. Section
12112(b)(4) thus protects qualified individuals who do not
themselves have disabilities and thus could not possibly meet
any general “qualified individual with a disability” require-
ment.

   Second, if the statute is viewed as ambiguous because of
the “qualified individual with a disability” language in
§ 12112(a), the relevant legislative history supports our con-
clusion regarding the interaction of § 12112(a) and
12112(b)(6). See Coeur d’Alene Tribe v. Hammond, 384 F.3d
674, 692 (9th Cir. 2004) (providing that we may consult legis-
lative history if a statutory provision is ambiguous), cert.
denied, 543 U.S. 1187 (2005). Especially instructive are the
committee reports, which the Supreme Court has said are “au-
thoritative source[s] for finding the Legislature’s intent.” Gar-
cia v. United States, 469 U.S. 70, 76 (1984). The committee
reports discuss the section of the ADA codified as
§ 12112(b)(6) and treat § 12112(b)(6) as a stand-alone provi-
sion, making no reference to the “qualified individual with a
17496                 BATES v. UNITED PARCEL SERVICE
disability” language in § 12112(a).17 For example, the report
of the House Judiciary Committee described the section codi-
fied at § 12112(b)(6) by noting:

        This section prohibits the use of qualification stan-
        dards, employment tests or other selection criteria
        that screen out or tend to screen out persons with dis-
        abilities, unless the criteria are shown to be
        jobrelated [sic] and consistent with business neces-
        sity.

           If an employer uses a facially neutral qualification
        standard, employment test or other selection crite-
        rion that has a discriminatory effect on persons with
        disabilities, this practice would be discriminatory
        unless the employer can demonstrate that it is
        jobrelated [sic] and required by business necessity.

H. REP. NO. 101-485, pt. 3, at 42 (1990), as reprinted in 1990
U.S.C.C.A.N. 445, 465 (emphases added); see also S. REP.
NO. 101-116, at 37 (1989) (“If a person with a disability
applies for a job and meets all selection criteria except one
that he or she cannot meet because of a disability, the criteria
[sic] must concern an essential, non-marginal aspect of the
job, and be carefully tailored to measure the person’s actual
ability to do this essential function of the job.” (emphases
added)); S. REP. NO. 101-116, at 27 (“[T]his legislation pro-
  17
    The pertinent EEOC guidance similarly treats § 12112(b)(6)’s prohibi-
tion against inadequately justified qualification standards as an indepen-
dent statutory requirement:
       [J]ob criteria that even unintentionally screen out, or tend to
       screen out, an individual with a disability or a class of individuals
       with disabilities because of their disability may not be used
       unless the employer demonstrates that that criteria, as used by the
       employer, are job-related to the position to which they are being
       applied and are consistent with business necessity.
29 C.F.R. pt. 1630 app. (Section 1630.10) (emphasis added).
                BATES v. UNITED PARCEL SERVICE             17497
hibits use of a blanket rule excluding people with certain dis-
abilities except in the very limited situation where in all cases
physical condition by its very nature would prevent the person
with a disability from performing the essential functions of
the job, even with reasonable accommodations.” (emphasis
added)).

   Particularly significant is the report of the House Commit-
tee on Education and Labor, which states:

    The Committee intends that the burden of proof
    under [the sections that were codified at
    § 12112(b)(1), (5)-(6)] be construed in the same
    manner in which parallel agency provisions are con-
    strued under Section 504 of the Rehabilitation Act as
    of June 4, 1989. See, e.g., . . . 29 C.F.R. 32.14
    (Department of Labor).

H. REP. NO. 101-485, pt. 2, at 72 (1990), as reprinted in 1990
U.S.C.C.A.N. 303, 354; see also H. REP. NO. 101-485, pt. 3,
at 42 n.32. The cited regulation places the burden on employ-
ers

    to ensure that to the extent job qualifications tend to
    exclude handicapped individuals because of their
    handicap, they are related to the performance of the
    job and are consistent with business necessity and
    safe performance. . . . The recipient shall have the
    burden to demonstrate that it has complied with the
    requirements of this paragraph.

29 C.F.R. § 32.14 (1988) (emphases added); see also Ben-
tivegna v. U.S. Dep’t of Labor, 694 F.2d 619, 621-22 (9th Cir.
1982) (applying 29 C.F.R. § 32.14). To place on Bates the
burden of demonstrating that the DOT standard excludes
some individuals who can drive “safely” cannot be squared
with this preexisting regulation.
17498              BATES v. UNITED PARCEL SERVICE
   As UPS points out, many of our cases have stated in gen-
eral terms that ADA plaintiffs bear the burden of establishing
that they are “qualified individuals with disabilities.” See,
e.g., Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 892
(9th Cir. 2001); Kennedy, 90 F.3d at 1481. See also Dark v.
Curry County, 451 F.3d 1078 (9th Cir. 2006); Cleveland v.
Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (“An ADA
plaintiff bears the burden of proving that she is a ‘qualified
individual with a disability’— that is, a person ‘who, with or
without reasonable accommodation, can perform the essential
functions’ of her job.” (quoting 42 U.S.C. § 12111(8))). These
cases, however, have, for the most part, not concerned chal-
lenges to a categorical qualification standard under
§§ 12112(b)(6) and § 12113(a) and thus do not take account
of how plaintiffs’ burdens are different when those provisions
apply. See, e.g., Hutton, 273 F.3d at 889 (determining whether
a particular employee was a “direct threat” under § 12113(b));
Weyer, 198 F.3d at 1108 (determining whether a provision in
an employer’s disability policy violated the ADA); Kennedy,
90 F.3d at 1481 (considering an employment termination
claim where no qualification standard was at issue); see also
Dark, 451 F.3d at 1086 (same); Cleveland, 526 U.S. at 806
(same).18 Cripe and Morton, our two cases that have consid-
ered qualification standards, are consistent with the approach
we adopt today.
   18
      Other circuits have held that when the “direct threat” defense in
§ 12113(b) applies, plaintiffs have the burden to establish they can per-
form their jobs safely as part of their burden to prove they are “qualified
individuals with disabilities,” if safe job performance is an “essential func-
tion” of the position. See, e.g., McKenzie v. Benton, 388 F.3d 1342, 1355-
56 (10th Cir. 2004), cert. denied, 544 U.S. 1048 (2005); EEOC v. Amego,
Inc., 110 F.3d 135, 144 (1st Cir. 1997). In our circuit, however, the direct
threat defense is distinct from the business necessity defense and applies
only when the safety-based reason for excluding an employee is “not for
reasons related to their performance of their jobs.” Morton, 272 F.3d at
1259. Thus, the circumstances in which a plaintiff bears the burden of
establishing she can perform her job safely in those other circuits — when
performing her job “safely” is an “essential function” — never arise in our
circuit in the context of the direct threat defense.
                   BATES v. UNITED PARCEL SERVICE                    17499
   Cripe states that “[t]he ADA prohibits employment dis-
crimination only against ‘qualified individual[s]’ with disabil-
ities” and that “[i]f a disabled person cannot perform a job’s
‘essential functions’ (even with a reasonable accommoda-
tion), then the ADA’s employment protections do not apply.”
261 F.3d at 884 (alteration in original) (quoting § 12112(a)).
In Cripe, however, the dispute about whether the plaintiffs
were “qualified individuals with disabilities” concerned not
whether they could safely perform the job functions in ques-
tion — it was clear that they could not — but whether the job
functions they could not perform were essential to the desired
positions.19 See id. at 885. There was no reason in Cripe to
consider the burdens of proof with regard to whether or not
a prescribed qualification standard the employer used to
assess the ability to perform a job safely discriminated on the
basis of disability. Cripe, therefore, did not consider the ques-
tion we address today.

   Morton followed Cripe and, in large part, forecast the reso-
lution of the burden of proof question we adopt today. In
Morton, UPS did not contend that Morton had to show that
she was a “qualified individual with a disability” in the sense
that she could drive “safely.” Instead, UPS made its argument
that deaf drivers cannot drive safely only as part of its “busi-
ness necessity” defense, and Morton proceeded to address the
safety issue only in that context. 272 F.3d at 1257. In contrast,
Morton treated a separate qualification-standard issue —
whether an essential function of any driving position was
being able to drive any UPS vehicle — in the same manner
as Cripe had handled the parallel question. See id. at 1254. As
  19
    UPS makes much of Cripe’s statement that “we” would “first consider
whether the plaintiffs are . . . ‘qualified individuals,’ ” and “we” would
“then consider the City’s argument that . . . the policies are ‘job-related’
and ‘consistent with business necessity.’ ” 261 F.3d at 886 (emphasis
added). That statement indicated only the order in which in the opinion
considered the issues. It did not indicate that plaintiffs always bear the
burden of proof on the first issue, even when an asserted qualification is
challenged as discriminatory under § 12112(b)(6).
17500             BATES v. UNITED PARCEL SERVICE
Morton came after Cripe, the distinction in Morton’s
approach to two different “qualified individual with disabili-
ty” issues confirms our understanding that Cripe is fully con-
sistent with today’s holding.

   Indeed, Morton necessarily assumed the result we reach
today. Morton held that when a safety-related qualification
standard that excludes a class of individuals with disabilities
is at issue, the employer satisfies its burden under the business
necessity defense if it can show that either (1) “substantially
all [excluded individuals with disabilities] present a higher
risk” than individuals not excluded, or (2) “there are no prac-
tical criteria for determining which [excluded individuals with
disabilities] present a heightened risk and which do not.” Id.
at 1263. Were we to hold that Bates bears the burden of estab-
lishing that at least some deaf individuals are capable of driv-
ing safely, the Morton affirmative defense would be rendered
almost entirely pointless. It necessarily follows from a show-
ing that the policy excludes some individuals capable of per-
forming the job safely that it is not true that “substantially all”
individuals excluded by the qualification standard present a
higher-than-normal risk.20 And if a plaintiff illustrates that a
qualification standard excludes individuals capable of safely
performing the essential functions of a job, she has demon-
strated that there are “criteria for determining which
[excluded individuals with disabilities] present a heightened
risk and which do not.” Id.

                           3.   Summary

   [6] We therefore hold that when a plaintiff challenges a cat-
egorical “qualification standard,” the plaintiff does not have
the burden of establishing that that qualification standard
excludes “qualified individuals with disabilities.” Rather, to
establish statutory standing, the plaintiff has the burden of
  20
    We read the word “substantially” to express the notion that the proof
that all excluded individuals are unsafe need not be air-tight.
                     BATES v. UNITED PARCEL SERVICE                     17501
establishing that she meets other qualifications, unrelated to
the challenged standard. In addition, the plaintiff has the bur-
den to prove that the challenged qualification standard
“screen[s] out or tend[s] to screen out an individual with a
disability or a class of individuals with disabilities.”
§ 12112(b)(6). The burden then shifts to the employer to
establish the business necessity defense.21

   Two observations about this holding are in order. First, by
holding that plaintiffs challenging a qualification standard do
not have the burden of establishing that the standard excludes
“qualified individuals with disabilities,” we are in no way
suggesting that the ADA requires employers to hire unquali-
fied individuals with disabilities. To the contrary, the business
necessity defense ensures that employers will not be required
to hire unqualified individuals, but channels the qualification
inquiry in part into an affirmative defense.

  Second, the burden-shifting framework we apply today per-
  21
    We note that our understanding of the parties’ burdens of proof in a
case such as this one is consistent with that of the most similar case we
have found, Monette. In Monette, the Sixth Circuit held:
       [I]f the plaintiff has direct evidence that the employer relied on
       his or her disability in making an adverse employment decision,
       or if the employer admits reliance on the handicap:
           1) The plaintiff bears the burden of establishing that he or
           she is “disabled.”
           2) The plaintiff bears the burden of establishing that he or
           she is “otherwise qualified” for the position despite his or her
           disability: a) without accommodation from the employer; b)
           with an alleged “essential” job requirement eliminated; or c)
           with a proposed reasonable accommodation.
           3) The employer will bear the burden of proving that a chal-
           lenged job criterion is essential, and therefore a business
           necessity, or that a proposed accommodation will impose an
           undue hardship upon the employer.
90 F.3d at 1186.
17502           BATES v. UNITED PARCEL SERVICE
tains to cases testing whether an employer may use a particu-
lar qualification standard, not to cases testing whether an
employer must hire a particular individual. If a court finds
against an employer under the framework outlined in this
opinion, it follows only that the employer may not use the
qualification standard, not that a person challenging the stan-
dard must be hired. The usual statutory standards apply when
an employer does not apply a categorical exclusion that pre-
cludes disabled persons from ever obtaining an individualized
determination but instead makes an individualized determina-
tion.

              IV.   Business Necessity Defense

   UPS contends that even if the district court was correct in
its allocation of the evidentiary burdens and in its finding that
Oloyede met the threshold qualifications, UPS is entitled to
judgment because it satisfied its burden under the business
necessity defense. Reviewing the district court’s extensive
findings of fact for clear error and for consistency with the
legal requisites of the business necessity defense, we do not
agree.

   To repeat: Under Morton’s two-pronged test for determin-
ing whether a defendant satisfies its burden on the business
necessity defense when a disability-focused safety criterion is
at issue, a defendant carries its burden if it establishes that
either (1) “substantially all [deaf drivers] present a higher risk
of accidents than non-deaf drivers,” or (2) “there are no prac-
tical criteria for determining which deaf drivers present a
heightened risk and which do not.” 272 F.3d at 1263. We
examine each prong in turn.

                       A.   First Prong

   The parties introduced three kinds of evidence pertaining to
the extent to which deaf drivers pose an increased safety risk
as compared to hearing drivers: crash risk studies, a human-
                BATES v. UNITED PARCEL SERVICE             17503
factors study, and expert testimony regarding “channel capac-
ity.” The district court found that UPS did not establish that
“substantially all [deaf drivers] present a higher risk of acci-
dents than non-deaf drivers.” This finding was not clearly
erroneous.

         1.   Summary of District Court Findings

   The district court first considered the crash risk studies and
concluded that they both suffered from methodological flaws
and yielded conflicting results about the extent to which deaf
drivers were more dangerous than hearing drivers. The district
court further noted that the one study that both parties agreed
was the least methodologically flawed found that deaf males
had 1.8 times the number of accidents as hearing males, but
that there was no significant difference in accident rates
between deaf and hearing females. Citing Morton, which had
considered the same study, the district court concluded that
“the gender anomaly serves to “negate[ ] any conclusion that
all or substantially all deaf drivers present a heightened risk
of accidents.” (alteration in original) (quoting Morton, 272
F.3d at 1264).

   In addition, the district court noted that because the studies
comparing “deaf” and “hearing” drivers used varying criteria
to classify drivers as “deaf,” none of which corresponded to
the DOT standard, the studies did not capture the risk differ-
ential between individuals who fail the DOT standard and
individuals who pass the DOT standard. Finally, the district
court observed that the risk studies were dated and that tech-
nological advances and advances in driver training in the
intervening decades cast doubt on their results.

   The district court next considered the “human factors
study” relied on by UPS. That study was based both on inter-
views with “subject matter experts” and on questionnaires
completed by eighty hearing truck drivers. The court found
that the study’s conclusion that “hearing is both important and
17504           BATES v. UNITED PARCEL SERVICE
necessary for the safe operation of commercial vehicles” was
not persuasive, because the study’s conclusions were based on
the subjective beliefs of hearing drivers. Neither the subjec-
tive beliefs of deaf drivers nor the ways in which deaf drivers
compensate for their hearing loss was considered. In addition,
the district court found this study not relevant to the question
at hand, as it merely demonstrated the existence of “hearing
critical” tasks but did not establish a link between those tasks
and safety.

   Finally, the court considered evidence about “channel
capacity” theory, which holds that there are limits to the
amount of information an individual can process through any
given sense. The court was not persuaded by the testimony of
UPS’s expert that he had “very strong doubts” that providing
deaf drivers with additional visual cues, such as visual warn-
ings of sirens, could be effective in compensating for hearing
loss. Having “very strong doubts” did not satisfy UPS’s bur-
den, said the district court, nor were the expert’s doubts
grounded in empirical evidence or any personal experience
with deaf drivers. To the contrary, the court noted, the expert
was not aware of any studies investigating whether technolog-
ical devices might allow deaf drivers to compensate effec-
tively for their hearing impairments, nor was he aware of any
studies investigating whether deaf drivers are able to compen-
sate effectively without the aid of technological devices.

   After surveying this evidence, the district court stated that
“all other things being equal, a driver with perfect hearing
would likely pose less of a safety risk than a driver with
impaired hearing” and that “there are, in theory at least, situa-
tions where a hearing driver would avoid an accident while a
deaf driver, with all of the same training and skills except for
hearing, would not.” The district court noted, however, that
“[t]his does not . . . answer the question of whether UPS’s
application of the DOT hearing standard to non-DOT-
regulated vehicles is consistent with business necessity,” rea-
soning:
                BATES v. UNITED PARCEL SERVICE             17505
    UPS had failed to demonstrate that those situations
    where hearing alone makes the difference between
    an accident and avoiding an accident would ever be
    confronted by a UPS package-car driver. While UPS
    offered anecdotal testimony involving situations
    where a driver avoided an accident because he or she
    heard a warning sound, the company, as discussed
    above, failed to show that those accidents would not
    also have been avoided by a deaf driver who has
    compensated for his or her loss of hearing by, for
    example, adapting modified driving techniques or
    using compensatory devices such as backing cam-
    eras or additional mirrors.

  In addition, the district court observed that even if the evi-
dence established that

    a hearing driver would pose less of a safety risk than
    a driver with the exact same characteristics and train-
    ing but with impaired hearing, that would not estab-
    lish that all or substantially all deaf drivers pose a
    heightened safety risk compared with hearing driv-
    ers. This one-to-one comparison is of little use in
    answering the question at hand because it does noth-
    ing to establish whether there is a significant portion
    of deaf drivers who are able to drive as safely as or
    more safely than the typical hearing driver.

(second emphasis added).

   Along the same lines, the district court noted that to satisfy
UPS’s burden, statistics about accident rates of deaf drivers
alone would be insufficient. Rather, “UPS must show that
deaf drivers pose a greater safety risk than that already
accepted by the company.” The court noted that the evidence
revealed that UPS tolerates some level of risk among its driv-
ers, citing accident-rate statistics and UPS policies that permit
drivers who have had accidents to continue as UPS drivers.
17506           BATES v. UNITED PARCEL SERVICE
The court observed that UPS had not demonstrated that deaf
drivers posed a greater risk of accidents than that tolerated for
hearing drivers.

   The district court next rejected the proposition that the
mere existence of the DOT standard supports UPS’s assertion
that hearing is necessary to drive non-DOT-regulated vehicles
safely, observing that the Ninth Circuit had squarely rejected
this argument in Morton. See Morton, 272 F.3d at 1263-64.
Moreover, the district court noted that UPS’s argument that
the same physical standards should apply to non-DOT-
regulated vehicles at issue because such vehicles pose the
same risk of danger as DOT-regulated vehicles was not sup-
ported by the evidence:

    [T]he DOT itself previously considered and rejected
    this argument, finding that “[m]ost vehicles having
    a GVWR of 10,000 pounds or less have operating
    characteristics similar to a large automobile and gen-
    erally pose no greater safety risk than other vehicles
    of similar or lesser weight when used on the high-
    way.”

(quoting 53 Fed. Reg. 18,042 (1988)) (second alteration in
original).

   Finally, the district court observed that UPS had not shown
that it was impossible to conduct a valid study comparing the
relative risks posed by deaf drivers, pointing out that there is
no evidence in the record of an insufficient number of deaf
commercial drivers in the United States to conduct such a
study and noting that even if there were, UPS could conduct
a study on deaf commercial drivers in other countries, on deaf
passenger-car drivers, or by using computer simulators.

  After this extensive analysis of the evidence, the district
court concluded that “the evidence is inconclusive as to
whether deaf drivers pose an increased risk compared with
                BATES v. UNITED PARCEL SERVICE             17507
hearing drivers.” It went on to state that “[b]ecause UPS bears
the burden of proving business necessity, the lack of conclu-
sive evidence requires the Court to rule against the company;
UPS simply has not proven that all or substantially all deaf
drivers pose an increased safety risk.”

                         2.   Analysis

   [7] The district court did not clearly err in finding that UPS
failed to show that deaf drivers pose a greater risk than other
drivers hired by the company. The district court carefully
evaluated the underlying record before finding that “UPS has
failed to demonstrate that those situations where hearing alone
makes the difference between an accident and avoiding the
accident would ever be confronted by a UPS package car
driver.” In so doing, the court determined that: (1) the crash-
risk studies UPS presented were methodologically flawed and
generally unhelpful; (2) the human factors study was not per-
suasive because it relied on the subjective impressions of
hearing drivers; and (3) the expert testimony relating to chan-
nel capacity was both indistinct and not well-grounded.
Because none of these predicate findings were clearly errone-
ous, neither was the district court’s ultimate finding of fact
that UPS did not establish that deaf drivers are less safe than
hearing drivers.

   [8] The district court’s findings are also fully consistent
with the business necessity defense. That defense requires that
the defendant establish one of two propositions: (1) that sub-
stantially all deaf drivers present an unacceptable risk of dan-
ger — i.e., substantially all individual deaf drivers present a
risk greater than the risk per driver already accepted by UPS,
or (2) that there is no practical way to determine which deaf
drivers present an unacceptable risk of danger. Hence, evi-
dence that a hearing driver is generally safer than a deaf
driver with similar skills and characteristics — i.e., evidence
of the sort that UPS presented to the district court — still does
not address the question of whether there are some deaf driv-
17508           BATES v. UNITED PARCEL SERVICE
ers who are as safe or safer than some or all of the hearing
drivers that UPS employs.

   It is this latter comparison that is key. Otherwise, UPS
would be allowed to exclude — contrary to the ADA — deaf
drivers who are no more dangerous than some hearing drivers
UPS employs and who can be identified by UPS as presenting
an acceptable risk of danger. The concept of risk, in other
words, is an individual, not an aggregate, one, albeit one cal-
culated by averaging out overall risk: How likely is it that the
individual driver will get into an accident? If there is, for
example, a one percent chance that hearing drivers who have
had two prior accidents will get into an accident, yet UPS
hires them, and a one percent chance that deaf drivers gener-
ally will get into an accident, then excluding deaf drivers gen-
erally is excluding a subgroup no less safe than another
subgroup not excluded, and is therefore discriminatory. Cf.
UAW v. Johnson Controls, Inc., 499 U.S. 187, 220 (1991)
(White, J., concurring in part and concurring in the judgment)
(stating that to determine whether a company may justify a
sex-differentiated policy on the ground that the policy’s pur-
pose is risk avoidance, courts must “consider the level of risk
avoidance that was part of [the employer’s] ‘normal opera-
tion’ ”). The district court’s holding thus correctly interpreted
Morton and its instruction that “the level of risk that UPS
accepts for drivers generally and for ascertainable subgroups
of drivers is pertinent” to the business necessity inquiry. Mor-
ton, 272 F.3d at 1265.

   That is not to say that there might not be some subgroup of
deaf drivers — deaf drivers with two previous accidents, per-
haps — who are more risky than any of the hearing drivers
UPS hires. And UPS certainly could decrease its overall level
of risk, if it wishes, by toughening its per-driver safety stan-
dards generally. UPS, however, cannot decrease its overall
risk by excluding all deaf drivers because of the incremental
aggregate additional risk they assertedly pose, without show-
ing any individualized risk that is beyond the risk already
                BATES v. UNITED PARCEL SERVICE             17509
accepted for some hearing drivers (or, as we develop next,
showing that it is impossible to isolate such an increased indi-
vidualized risk). To do so would be the essence of the dis-
crimination the ADA seeks to eliminate.

   [9] In sum, the district court’s conclusion that the evidence
was inconclusive on the question of whether “substantially all
[deaf drivers] present a higher risk of accidents than non-deaf
drivers,” Morton, 272 F.3d at 1263, was not clearly erroneous.

                      B.   Second Prong

         1.   Summary of District Court Findings

   To satisfy the second prong of the business necessity test,
UPS had to demonstrate that “there are no practical criteria
for determining which deaf drivers present a heightened risk
and which do not.” Id. UPS could establish that no such prac-
tical criteria exist by demonstrating, inter alia, that “empirical
evidence in this area is so difficult to come by that it is impos-
sible to identify specific risk factors and then use those factors
to sort disabled applicants into risk categories.” Id. at 1265.

   The district court, in its extensive findings of fact regarding
prong two, determined that UPS failed to prove that it could
not modify its existing training and assessment program to
determine which deaf drivers are safe. Nor, held the district
court, did UPS demonstrate the inefficacy or impracticality of
several other “obvious” criteria for evaluating the safety of
drivers. Such criteria, the district court noted, might include
(1) “whether the applicant has had the benefit of rehabilitative
or specialized driver training to compensate for the impair-
ment”; (2) “whether the applicant has a sustained driving
record (with the impairment), indicating he or she has suc-
cessfully overcome the impairment”; (3) “whether the appli-
cant has previously successfully driven commercial delivery
vehicles . . . with the impairment”; and (4) whether the appli-
cant has passed a “supplemental driving test specifically
17510          BATES v. UNITED PARCEL SERVICE
designed to simulate the scenarios of concern.” (internal quo-
tation marks omitted) (quoting EEOC v. United Parcel Ser-
vices, Inc., 149 F. Supp. 2d 1115, 1170 (N.D. Cal. 2000),
rev’d on other grounds, 306 F.3d 794 (9th Cir. 2002)). The
court additionally found that “UPS has never tried to train a
deaf driver, nor has it ever investigated ways in which it
might do so.”

   In addition, the court found the testimony of Dr. Songer,
one of Bates’s expert witnesses, not dispositive, UPS’s con-
tention to the contrary notwithstanding. Dr. Songer testified
that:

    There is no evidence available at this point that can
    point to characteristics amongst individuals who are
    deaf or hearing impaired that say that this one may
    be more likely to crash because of the hearing
    impairment than another one. There’s other things
    you could do that are unrelated to hearing that may
    be potentially helpful. But with respect to hearing,
    there’s nothing we know at this point in time.

UPS argued to the district court that Dr. Songer’s testimony
proved the ultimate issue under prong two — whether it was
possible to distinguish among deaf individuals to determine
which individuals posed a heightened risk of accident. The
court rejected UPS’s arguments, because, read in context, Dr.
Songer’s testimony suggested only

    that it would be impossible to say, for example,
    whether an individual who is profoundly deaf would
    be more or less likely to crash because of that
    impairment than someone who has a lesser degree of
    hearing impairment, or whether an individual who
    was born with a hearing impairment would be more
    or less likely to crash because of that impairment
    than someone who acquired a hearing impairment
    later in life. The Court does not find this testimony
                   BATES v. UNITED PARCEL SERVICE                   17511
       to be dispositive of the ultimate legal issue because
       it fails to address whether UPS’s driver assessment
       and training programs or other similar tools could be
       effectively applied to screen deaf drivers.

                             2.   Analysis

   The district court’s findings on the second prong of the
business necessity test, like its findings on the first, are not
clearly erroneous and are free of legal error.

   First, the district court’s interpretation of Dr. Songer’s
remarks, upon which UPS heavily relies in its appeal, was not
clearly erroneous: Dr. Songer stated that “[t]here is no evi-
dence available at this point that can point to characteristics
amongst individuals who are deaf or hearing impaired that say
that this one may be more likely to crash because of the hear-
ing impairment” and immediately thereafter noted that
“[t]here’s [sic] other things you could do that are unrelated to
hearing that may be potentially helpful.” (emphasis added).22
So Dr. Songer’s testimony establishes only that certain kinds
of evidence are not available, not that there exist no criteria
for determining which deaf individuals present an unduly high
risk. Similarly, while Dr. Songer testified that it would not be
possible to do a general study of whether deaf drivers are safe
to drive commercial vehicles without modification of DOT
regulations precluding deaf individuals from driving many
such vehicles, that testimony does not address the pertinent
  22
     UPS’s expert, Dr. Staplin, testified that there are no proven mecha-
nisms for determining which deaf individuals might pose a heightened
risk. That testimony does not, however, provide support for this proposi-
tion. Dr. Staplin did not make any statements that could be construed as
supporting the proposition that there is no other way to screen drivers to
determine who will be safe. He also “agree[d] that DMV screening, that
is, the examination of violation and crash records, has importance in iden-
tifying individuals who may be at increased risk of a crash,” thus indicat-
ing that there are ways that could help determine which deaf drivers are
more likely than other drivers to crash.
17512              BATES v. UNITED PARCEL SERVICE
question for this case. DOT regulations preclude studies of
deaf drivers of DOT-regulated vehicles, not studies of deaf
drivers of vehicles not regulated by the DOT, the vehicles at
issue in the present case.

   [10] Second, under Morton, it is the employer who must
establish (1) that there exist no practical criteria for determin-
ing which deaf drivers are safe, or (2) that there exists no
empirical evidence from which to derive criteria for determin-
ing which deaf drivers are safe. See Morton, 272 F.3d at 1265
(“If UPS were able to show that empirical evidence in this
area is so difficult to come by that it is impossible to identify
specific risk factors and then use those factors to sort disabled
applicants into risk categories, then its application of an over-
inclusive qualification standard might meet the business
necessity test.”). Here, several possible criteria for distin-
guishing among deaf drivers and several sources of empirical
evidence from which to derive such criteria are apparent. UPS
had the burden at least to introduce evidence tending to show
that no such criteria are practical or effective or no such evi-
dence is obtainable. Because UPS entirely failed to do so, pre-
senting essentially no evidence on this critical question, it did
not satisfy its burden under prong two of the business neces-
sity test.

   For example, UPS uses driving records to aid in predicting
whether individuals will be safe drivers, excluding from con-
sideration for package-car driving positions individuals who,
inter alia, have more than a specified number of moving vio-
lations or accidents in a particular period of time. Absent
some persuasive explanation as to why similar criteria could
not be used to separate safe from unsafe deaf drivers, the dis-
trict court was entitled to conclude that UPS had not met its
burden of demonstrating that there are no practical criteria avail-
able.23 Similarly, UPS gives driving tests and extensive train-
   23
      The district court rejected UPS’s contention that deaf drivers who
have violated the law receive citations less often than hearing drivers and
that driving records of deaf drivers are therefore unreliable. On appeal,
UPS does not challenge that conclusion.
                BATES v. UNITED PARCEL SERVICE             17513
ing to prospective drivers, presumably because doing so helps
in assessing which applicants will drive safely. Yet, the record
does not address the reasons similar tests and training could
not determine which deaf drivers, if any, present no greater
risk of accidents than the risk UPS accepts for other drivers.
Of particular significance in these regards is that deaf drivers
are licensed to drive passenger cars in every state and do,
including vehicles as large as the smaller UPS package cars.
There is therefore no legal impediment to assessing and train-
ing deaf drivers, and both driving and accident-rate records
for deaf drivers seeking UPS driving jobs are obtainable.

   [11] UPS’s challenge to the district court’s findings under
prong two therefore fails. And, because UPS did not satisfy
its burden on either prong, it failed to establish that its use of
the hearing standard is job-related and consistent with busi-
ness necessity. UPS therefore violated the ADA.

                             *****

   We underscore that our holding turns entirely on UPS’s
failure to adduce any persuasive proof suggesting that its stan-
dard is justified as job-related and consistent with business
necessity. UPS contends that in the face of uncertainty regard-
ing whether deaf drivers are more dangerous than hearing
drivers, it must be given the benefit of the doubt. The second
prong of the business necessity defense in Morton does give
employers the benefit of the doubt in cases of uncertainty, but
only when the employers introduce persuasive evidence sup-
porting the conclusion that the answers to the questions at
hand truly are uncertain. Here, UPS made no such showing.

                        V.   Injunction

   UPS next challenges the terms of the injunction issued by
the district court. Under the ADA, courts have the power to

    enjoin the respondent from engaging in such unlaw-
    ful employment practice, and order such affirmative
17514              BATES v. UNITED PARCEL SERVICE
       action as may be appropriate, which may include,
       but is not limited to, reinstatement or hiring of
       employees, with or without back pay (payable by the
       employer, employment agency, or labor organiza-
       tion, as the case may be, responsible for the unlawful
       employment practice), or any other equitable relief
       as the court deems appropriate.

42 U.S.C. § 2000e-5(g)(1) (incorporated into the ADA by 42
U.S.C. § 12117). We review the terms of an injunction for
abuse of discretion. Walters v. Reno, 145 F.3d 1032, 1049
(9th Cir. 1998); see also Am.-Arab Anti-Discrimination
Comm. v. Reno, 70 F.3d 1045, 1066 (9th Cir. 1995).

   Here, the injunction contains two elements. First, the order
states that “UPS shall cease using the DOT hearing standard
to screen applicants for package-car driving positions” but
noted that “nothing in this order requires UPS to allow appli-
cants who cannot pass the DOT hearing standard to drive
vehicles weighing more than 10,000 pounds.” Second, the
order states that if individuals fail the DOT hearing test but
meet all other threshold requirements, “UPS shall perform an
individualized assessment” of the ability of those individuals,
including engaging in an “interactive process designed to
identify specific accommodations that would enable the deaf
individual to obtain driving work” in non-DOT regulated
package cars.24

  UPS challenges two aspects of the injunction. First, UPS
contends that “the DOT standard is the only proven means of
  24
     The second element of the injunction applies only to those who fail
the DOT test. Thus, UPS may continue to use the DOT standard to deter-
mine which drivers’ hearing is so evidently adequate as to need no further
assessment, but not to exclude any applicant for a position driving vehicles
with GVWRs and gross vehicle weights less than 10,001 pounds. We
therefore understand the prohibition on “us[ing] the DOT hearing standard
to screen applicants” as precluding not all use of the test, but use of the
test as a basis for screening applicants out — that is, for excluding them.
                BATES v. UNITED PARCEL SERVICE             17515
screening those deaf drivers who present a genuine risk to
safety.” This argument is simply a reiteration of UPS’s argu-
ment on the second prong of the Morton test — that there is
no way to assess deaf drivers for safety other than the DOT
standard. We have upheld as not clearly erroneous and consis-
tent with the applicable legal standards the district court’s
finding of fact to the contrary. The issuance of injunctive
relief premised on a valid factfinding is valid as well.

   [12] Second, UPS contends that the injunction requires
UPS to use “a new ‘specially designed’ test to determine deaf
driver safety on an individual basis,” and contends that this
test was “invented by the court” and “has no basis in evi-
dence.” The injunction does not, however, require UPS to use
any particular test for screening deaf drivers. It only prohibits
it from categorically excluding deaf drivers from consider-
ation and requires instead, some form of individualized
assessment. Once the district court concluded that UPS’s use
of the hearing standard violated the ADA, the court was fully
empowered to enjoin that use. See 42 U.S.C. § 2000e-5(g)(1)
(incorporated into the ADA by 42 U.S.C. § 12117) (giving
courts the power to, inter alia, “enjoin the respondent from
engaging in such unlawful employment practice”).

   [13] Given the district court’s findings on the merits, the
injunction issued intruded into UPS’s business practices and
discretion to the least degree possible under the ADA. Aside
from limiting (but not banning) the use of the qualification
standard found invalid and reiterating the statutory accommo-
dation requirement, the injunction leaves it to the company to
develop new assessment and training criteria for deaf drivers.
Thus, while UPS argues that the district court ignored the
Supreme Court’s admonition in Furnco Construction Corp. v.
Waters that “[c]ourts are generally less competent than
employers to restructure business practices” 438 U.S. 567,
578 (1978), the district court in fact carefully heeded that
admonition. The court merely proscribed the use of an illegal
standard, but did not prescribe the use of a particular method
17516              BATES v. UNITED PARCEL SERVICE
for hiring package-car drivers. We hold that the district
court’s injunction was not an abuse of discretion.

                            VI.    Unruh Act

   Finally, UPS argues that the district court erred in finding
in favor of Bates on the Unruh Act claim.25

   The Unruh Act’s central substantive statutory provision
states that

       [a]ll persons within the jurisdiction of this state are
       free and equal, and no matter what their sex, race,
       color, religion, ancestry, national origin, disability,
       medical condition, marital status, or sexual orienta-
       tion are entitled to the full and equal accommoda-
       tions, advantages, facilities, privileges, or services in
       all business establishments of every kind whatso-
       ever.
  25
     UPS also appeals the district court’s holding that because UPS vio-
lated the ADA, it a fortiori violated the FEHA. After the district court
issued its decision, however, this court observed in EEOC v. United Par-
cel Service, Inc. that FEHA’s “safety-of-others defense has no direct ana-
logue in the ADA” and is broader than the ADA’s direct threat defense,
its closest analog. See 424 F.3d 1060, 1074 n.12. (9th Cir. 2005). UPS
now contends that it is not liable under FEHA, arguing, inter alia, that it
has satisfied FEHA’s safety-of-others defense.
   In light of the clarification of the applicable legal standard, we do not
review the district court’s finding, applying a different legal standard, that
UPS violated FEHA. Our holding that UPS violated the ADA is sufficient
grounds for affirming the injunction. The district court will have ample
opportunity to make findings of fact pertinent to the EEOC v. United Par-
cel Service, Inc. interpretation of the FEHA safety-of-others defense
should the distinction between that standard and the ADA business neces-
sity standard prove pertinent at the damages phase of this case. See 424
F.3d at 1075 (“FEHA’s safety-of-others defense requires an individualized
showing that safety would be compromised by each [employee’s] perfor-
mance of driving duties,” although “[c]ategorical evidence can be relevant
. . . .”).
                   BATES v. UNITED PARCEL SERVICE                    17517
CAL. CIV. CODE § 51(b). Section 51(f) of the Unruh Act states
that “[a] violation of the right of any individual under the
Americans with Disabilities Act of 1990 shall also constitute
a violation of this section.” Id. § 51(f) (citation omitted).
Bates contends that because UPS violated the ADA, it follows
from section 51(f) that UPS also violated the Unruh Act.
UPS’s contrary argument is that the Unruh Act does not cover
employment discrimination claims, section 51(f) notwith-
standing, so UPS did not violate the Unruh Act.

  [14] We recently addressed this precise legal question. See
Bass v. County of Butte, 458 F.3d 978 (9th Cir. 2006). Bass
held that a violation of Title I of the ADA, 42 U.S.C.
§§ 12111-12117, which covers employment discrimination, is
not automatically a violation of the Unruh Act.26 We therefore
reverse the district court’s finding that UPS is liable under the
California statute.

                          VII.    Conclusion

   We hold that when plaintiffs challenge an employer’s use
of a safety-based qualification standard, they need not, inde-
pendently of that challenge, establish generally that they can
perform the essential function of doing the job safely. They
are, however, required to show they are “qualified” in the
sense that they satisfy prerequisites for the position, including
  26
    A California Court of Appeals had held similarly in Williams v.
Genentech, Inc., 42 Cal. Rptr. 3d 585 (Ct. App. 2006). On August 23,
2006, the California Supreme Court granted review of Williams. If that
court reaches a different conclusion than that reached by this court 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. Cir-
cuit 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 inter-
vening change in the law [has] occurred”). Instead, the California Supreme
Court decision will be binding on any later proceedings as they relate to
Bates’ Unruh Act claim.
17518           BATES v. UNITED PARCEL SERVICE
safety-related prerequisites, not connected to the challenged
criterion. Once plaintiffs have so demonstrated, and have also
shown that the qualification standard “screen[s] out or tend[s]
to screen out an individual with a disability or a class of indi-
viduals with disabilities,” § 12112(b)(6), the burden shifts to
the defendant to establish that the challenged qualification
standard is job-related and consistent with business necessity.

   We affirm the district court’s factual finding that UPS
failed to carry its burden and its legal conclusion that UPS
therefore violated the ADA. We also affirm the district court’s
injunction and its order denying UPS’s motion to decertify the
class. Finally, we reverse the district court’s finding of liabil-
ity under the Unruh Act, which we hold does not cover
employment discrimination claims.

 AFFIRMED          in   part,   REVERSED         in   part,   and
REMANDED.
