                   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-TEH
                  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, Senior District Judge, Presiding

                   Argued and Submitted
          June 20, 2007—San Francisco, California

                   Filed December 28, 2007

 Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
         Stephen Reinhardt, Pamela Ann Rymer,
        Michael Daly Hawkins, Sidney R. Thomas,
       Barry G. Silverman, M. Margaret McKeown,
  Raymond C. Fisher, Ronald M. Gould, Richard A. Paez,
 Marsha S. Berzon, Richard R. Clifton, Milan D. Smith, Jr.,
           and Sandra S. Ikuta, Circuit Judges.

               Opinion by Judge McKeown;
  Partial Concurrence and Partial Dissent by Judge Berzon



                             16883
               BATES v. UNITED PARCEL SERVICE           16889
                         COUNSEL

Mark A. Perry (argued), Gibson, Dunn & Crutcher, LLP,
Washington, D.C., Christopher J. Martin, Gibson Dunn &
Crutcher, LLP, Palo Alto, California, Rachel S. Brass and
Amanda M. Rose, Gibson, Dunn & Crutcher, LLP, San Fran-
cisco, California, for the defendant-appellant.

Laurence W. Paradis (argued) and Kevin M. Knestrick, Dis-
ability Rights Advocates, Berkeley, California, Todd M.
Schneider and Guy B. Wallace, Schneider & Wallace, San
Francisco, California, for the plaintiffs-appellees.

James L. Lee, Carolyn L. Wheeler, Vincent J. Blackwood and
Barbara L. Sloan (argued), Equal Employment Opportunity
Commission, Washington, D.C., for amicus curiae Equal
Employment Opportunity Commission.

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.

Rae T. Vann, McGuiness Norris & Williams, LLP, Washing-
ton, D.C., for amicus curiae Equal Employment Advisory
Council.

Robin S. Conrad and Shane Brennan, National Chamber Liti-
gation Center, Inc., for amicus curiae Chamber of Commerce
of the United States of America.

Robert Digges, Jr., American Trucking Associations, Inc.,
Alexandria, Virginia, J. Brett Busby and Jeffrey L. Oldham,
Mayer, Brown, Rowe & Maw LLP, Houston, Texas, for
amicus curiae American Trucking Associations, Inc.
16890              BATES v. UNITED PARCEL SERVICE
                               OPINION

McKEOWN, Circuit Judge:

   This appeal under the Americans with Disabilities Act
(ADA) requires us to consider the intersection of a safety-
based qualification standard and the “business necessity”
defense. United Parcel Service (UPS) imposes a Department
of Transportation (DOT) hearing standard on all package-car
drivers, even though the DOT standard is federally mandated
only for higher-weight vehicles. A class of hearing-impaired
UPS employees and applicants who cannot meet the DOT
hearing requirement challenges UPS’s policy under Title I of
the ADA, 42 U.S.C. §§ 12101-12213, the California Fair
Employment and Housing Act (FEHA), Cal. Gov’t Code
§§ 12900-12996, and the Unruh Civil Rights Act (Unruh
Act), Cal. Civ. Code § 51.1

   Bates accepts, as he must, that UPS may lawfully exclude
individuals who fail the DOT test from positions that would
require them to drive DOT-regulated vehicles, i.e., vehicles
exceeding a gross vehicle weight rating (GVWR) of 10,000
pounds. See Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555,
570 (1999). Bates contends, however, that UPS may not law-
fully exclude hearing-impaired individuals from consideration
for positions that involve vehicles whose GVWR is less than
10,001 pounds.

   After a bench trial on liability, the district court found UPS
liable on all of Bates’s claims, enjoined UPS from using the
blanket qualification standard, and required individualized
assessment of candidates for the package-car driver positions.
The court founded its analysis on the pattern-or-practice
burden-shifting framework of International Brotherhood of
  1
    The original lead plaintiff, Eric Bates, passed the DOT physical exami-
nation, including the hearing standard, after the nationwide class was certi-
fied. For ease of reference, we refer to the class as “Bates.”
                BATES v. UNITED PARCEL SERVICE           16891
Teamsters v. United States, 431 U.S. 324 (1977). In determin-
ing whether UPS met its asserted “business necessity”
defense, the district court looked to our earlier decision
involving hearing-impaired UPS drivers, Morton v. United
Parcel Service, Inc., 272 F.3d 1249 (9th Cir. 2001). Morton
imported into its ADA analysis concepts from both the tradi-
tional Title VII business necessity defense to disparate impact
claims and the “bona fide occupational qualification” (BFOQ)
standard from Title VII disparate treatment challenges to a
proscribed classification.

   We granted rehearing en banc to consider the contours of
a claim that an employer’s safety qualification standard dis-
criminates against otherwise “qualified” persons with disabili-
ties, see 42 U.S.C. § 12112(a), (b)(6), and the showing
required of an employer to successfully assert the business
necessity defense to use of such qualification under 42 U.S.C.
§ 12113(a). Because this case involves a facially discrimina-
tory qualification standard, we conclude that the Teamsters’
burden-shifting protocol is inapplicable. In addition, we over-
rule Morton to the extent that it imposes a BFOQ standard
under the ADA, as the plain language of the ADA does not
support such a construction. Because the district court consid-
ered this case under the framework of Teamsters and Morton,
we vacate and remand for further proceedings. We do not
consider the merits of the FEHA claim because the pertinent
FEHA law has changed since the district court issued its deci-
sion. Finally, following our decision in Bass v. County of
Butte, 458 F.3d 978 (9th Cir. 2006), we reverse the district
court’s finding that UPS violated the Unruh Act.

                        BACKGROUND

UPS   AND   PACKAGE-CAR DRIVERS

  UPS package-car drivers deliver and pick up packages for
UPS in the familiar brown UPS trucks. UPS employs more
16892             BATES v. UNITED PARCEL SERVICE
than 320,000 employees in the United States, over 70,000 of
whom are package-car drivers.

   When an opening for a driving position becomes available,
UPS contacts the individual in that UPS center with the high-
est seniority who has bid on such a position.2 If that person
is not interested, UPS moves down the list in descending
seniority order until it finds an interested employee. The
applicant must satisfy several requirements, which vary from
district to district, but generally include (1) having completed
an application; (2) being at least twenty-one years of age;
(3) possessing a valid driver’s license; and (4) having a
“clean” driving record. Once the seniority threshold and other
prerequisites to employment are met, all applicants for a
package-car driver position must pass both UPS’s road test
and the DOT physical examination required of drivers of
commercial vehicles over 10,000 pounds. UPS has a policy of
hiring only drivers who can satisfy DOT standards.

   At issue in this appeal is the hearing standard that is part
of the DOT physical. An individual satisfies the DOT hearing
standard if he

      [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
  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                       16893
forced-whispered standard requires that potential drivers not
only hear the sounds made but understand the words spoken.

   Unlike UPS, which requires drivers of all package cars to
pass the DOT physical, the DOT imposes this standard only
for those driving vehicles with a GVWR of at least 10,001
pounds. See 49 U.S.C. § 31132(1)(A); 49 C.F.R. § 391.41. A
“gross vehicle weight rating” is the actual weight of the vehi-
cle plus any cargo capacity. As of October 2003, UPS’s fleet
contained 65,198 vehicles, of which 5,902 vehicles had a
GVWR of less than 10,001 pounds. The GVWR of the lighter
vehicles ranged from 7,160 to 9,318 pounds, with the majority
of these vehicles weighing 8,600 pounds. By way of compari-
son, automobiles, which include passenger cars, sport utility
vehicles, light trucks and minivans, average 3,240 pounds.3

PROCEEDINGS IN THE DISTRICT COURT

   In November 2001, the district court certified a nationwide
federal class on the ADA claim that includes “[t]hose persons
throughout the United States who (i) have been employed by
and/or applied for employment with [UPS] at any time since
June 25, 1997, up through the conclusion of this action,
(ii) use sign language as a primary means of communication
due to a hearing loss or limitation, and (iii) allege that their
rights have been violated under Title I of the ADA on account
of [UPS’s] policies and procedures.”4 The federal class was
certified under Federal Rule of Civil Procedure 23(b)(2) to
seek primarily injunctive and declaratory relief. As part of its
post-trial findings and conclusions, the district court modified
the composition of the class on the “driving issue” to include
“only those individuals who failed or would fail the DOT
hearing test.” See Fed. R. Civ. P. 23(c)(1)(C) (“An order [cer-
  3
     David A. Buckingham, U.S. Geo. Survey, Steel Stocks in Use in Auto-
mobiles in the United States 1 (2006).
   4
     The district court also certified a subclass of California plaintiffs on the
state law claims.
16894           BATES v. UNITED PARCEL SERVICE
tifying an action as a “class action”] under Rule 23(c)(1) may
be altered or amended before final judgment.”).

   Phase one of the bifurcated bench trial was conducted over
several weeks in the spring and fall of 2003. At the close of
Bates’s evidence, UPS moved pursuant to Federal Rule of
Civil Procedure 52(c) for judgment on partial findings. UPS
argued that its invocation of the DOT hearing standard is law-
ful because Bates failed to show that (1) any class member
meets the DOT standard and thus failed to show that any class
member satisfies the essential functions of the job, or (2) that
any reasonable accommodation exists that would permit class
members to pass the DOT hearing test. In the alternative, UPS
moved to decertify the class pursuant to Federal Rule of Civil
Procedure 23(c)(1) and (d), contending that Bates failed to
show that there is an adequate class representative, or pro-
posed substitute, who is otherwise qualified for a UPS
package-car driver position or has been injured by UPS’s use
of the qualification standard.

   Following phase one of the trial, the district court issued
detailed findings of fact and conclusions of law. The district
court found that Bates satisfied his prima facie case based
upon a combination of two factors: first, UPS’s policy oper-
ated as a blanket exclusion of deaf individuals, and second, at
least one named plaintiff, Babaranti Oloyede, and at least one
class member, Elias Habib, were “qualified” individuals with
a disability with standing to sue under the ADA by virtue of
having satisfied all prerequisites for the driving position other
than the DOT hearing requirement. The court further con-
cluded that Bates did not have the burden to establish at that
stage that any plaintiffs were “qualified” in the sense that they
were capable of driving safely. Accordingly, the district court
denied UPS’s motions for judgment under Rule 52(c) and to
decertify the class.

 Critical to its ruling, the district court next found that, under
Morton, UPS failed to satisfy its burden under the business
                BATES v. UNITED PARCEL SERVICE              16895
necessity defense. Thus, the court reasoned, UPS’s categorical
exclusion of individuals who do not meet the DOT hearing
requirement violates the ADA (and, accordingly, the FEHA
and the Unruh Act as well). The district court entered an
injunction requiring UPS to “cease using the DOT hearing
standard to screen applicants for package-car driver positions”
with respect to vehicles weighing 10,000 pounds or less and
to “perform an individualized assessment” of applicants that
meet the threshold qualifications, other than the hearing stan-
dard. Upon UPS’s motion, the district court stayed all further
proceedings pending UPS’s interlocutory appeal.

                            ANALYSIS

I.   JURISDICTION

   UPS’s interlocutory appeal of the order granting a perma-
nent injunction falls squarely within the scope of 28 U.S.C.
§ 1292(a)(1),      which    grants     us   jurisdiction     over
“[i]nterlocutory orders of the district courts . . . granting . . .
injunctions.” Our review of the permanent injunction properly
includes review of the merits of the district court’s determina-
tion of liability. Smith v. Vulcan Iron Works, 165 U.S. 518,
525 (1897); e.g., Long v. Bureau of Economic Analysis, 646
F.2d 1310, 1317-18 (9th Cir. 1981) (per curiam), vacated on
other grounds, 454 U.S. 934 (1981). Review is particularly
appropriate in cases like this one, in which the appeal is taken
from a permanent, rather than preliminary, injunction, and
“[t]he district court has completed its consideration of the lia-
bility issue, retaining jurisdiction only for an accounting of
damages.” Marathon Oil Co. v. United States, 807 F.2d 759,
764 (9th Cir. 1986).

  We likewise have jurisdiction to consider the district
court’s denial of UPS’s Rule 52(c) motion for judgment on
partial findings or, in the alternative, for class decertification
under Rule 23(c)(1) and (d), because the district court’s deter-
minations as to both motions are inextricably intertwined with
16896            BATES v. UNITED PARCEL SERVICE
the permanent injunction. Paige v. California, 102 F.3d 1035,
1039-40 (9th Cir. 1996) (reviewing class certification order
under § 1292(a)(1) because order was “inextricably inter-
twined” with permanent injunction granting class-wide relief);
Marathon Oil, 807 F.2d at 764-65 (reviewing summary judg-
ment and partial dismissal under § 1292(a)(1) where orders
were “inextricably bound up” with findings and conclusions
in support of permanent injunction).

II.   ARTICLE III STANDING

   The district court did not grapple with the Article III stand-
ing issue, apparently because UPS did not raise a standing
challenge below but instead framed its challenge as one to
Bates’s failure to prove his prima facie case. Standing is a
threshold matter central to our subject matter jurisdiction. We
must assure ourselves that the constitutional standing require-
ments are satisfied before proceeding to the merits. United
States v. Hays, 515 U.S. 737, 742 (1995); Casey v. Lewis, 4
F.3d 1516, 1524 (9th Cir. 1993).

   [1] In a class action, standing is satisfied if at least one
named plaintiff meets the requirements. See Armstrong v.
Davis, 275 F.3d 849, 860 (9th Cir. 2001). The plaintiff class
bears the burden of showing that the Article III standing
requirements are met. See id. at 860-61. As we know from the
oft-repeated passages in Lujan, standing requires that (1) the
plaintiff suffered an injury in fact, i.e., one that is sufficiently
“concrete and particularized” and “actual or imminent, not
conjectural or hypothetical,” (2) the injury is “fairly trace-
able” to the challenged conduct, and (3) the injury is “likely”
to be “redressed by a favorable decision.” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992) (quotation marks and
citations omitted). Standing must be shown with respect to
each form of relief sought, whether it be injunctive relief,
damages or civil penalties. Friends of the Earth, Inc. v.
Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).
Here, only liability and equitable relief were at issue in the
                BATES v. UNITED PARCEL SERVICE             16897
district court, not damages. Thus, we consider only whether
at least one named plaintiff satisfies the standing requirements
for injunctive relief.

   [2] The standing formulation for a plaintiff seeking pro-
spective injunctive relief is simply one implementation of
Lujan’s requirements. The plaintiff must demonstrate that he
has suffered or is threatened with a “concrete and particular-
ized” legal harm, Lujan, 504 U.S. at 560, coupled with “a suf-
ficient likelihood that he will again be wronged in a similar
way.” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).
As to the second inquiry, he must establish a “real and imme-
diate threat of repeated injury.” O’Shea v. Littleton, 414 U.S.
488, 496 (1974). “[P]ast wrongs do not in themselves amount
to [a] real and immediate threat of injury necessary to make
out a case or controversy.” Lyons, 461 U.S. at 103. However,
“past wrongs are evidence bearing on whether there is a real
and immediate threat of repeated injury.” O’Shea, 414 U.S. at
496. In addition, the claimed threat of injury must be likely
to be redressed by the prospective injunctive relief. Graham
v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1003 (9th
Cir. 1998) (recognizing that “[p]laintiffs need not demonstrate
that there is a ‘guarantee’ that their injuries will be redressed
by a favorable decision” but “only that a favorable decision
is likely to redress” their injuries) (quotation marks and cita-
tion omitted).

   Although the district court did not make explicit findings
on standing, it made detailed findings on relevant and analo-
gous issues sufficient to support standing. “[W]e will affirm
standing . . . unless those findings are clearly erroneous.”
Armstrong, 275 F.3d at 861. Based on the district court’s find-
ings regarding named plaintiff Barbaranti Oloyede, we con-
clude that he and class member Elias Habib satisfy the
standing requirements with respect to injunctive relief.

   As a general matter, the class includes only those individu-
als who failed or would fail the DOT hearing test. Oloyede
16898           BATES v. UNITED PARCEL SERVICE
worked for UPS beginning in 1991, first applied for a
package-car driver position in 1998, and expressed interest in
that position several additional times, most recently in 2003.
His supervisor told him in 2000 that he would have to pass a
hearing exam to become a driver. Oloyede was not hired as
a package-car driver.

   [3] Both aspects of the injury requirement are met in this
case. First, UPS’s failure to hire Oloyede as a package-car
driver was a sufficiently “concrete and particularized” harm,
in that the injury affected him “in a personal and individual
way.” Lujan, 504 U.S. at 560 n.1. Second, the crux of this
lawsuit is the challenge to UPS’s written qualification stan-
dard, including the DOT hearing standard. Where, as here,
“the harm alleged is directly traceable to a written policy . . .
there is an implicit likelihood of its repetition in the immedi-
ate future.” Armstrong, 275 F.3d at 861; see also Fortyune v.
Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004).

   [4] The causation element of standing is easily satisfied.
Oloyede’s claimed injury—failure to hire him as a package-
car driver because of a hearing disability—was caused and
will continue to be caused by UPS’s application of the DOT
hearing standard. See, e.g., Mortensen v. County of Sacra-
mento, 368 F.3d 1082, 1086 (9th Cir. 2004) (holding that
plaintiff showed there was a “significant possibility” that he
would suffer future injury based upon county’s written policy
regarding compensatory time off, where the policy had been
applied to him in the past and remained in place).

   Finally, we turn to the issue of redressability. After certifi-
cation of the class in 2001, Oloyede accepted a position at
UPS which, due to the terms of a collective bargaining agree-
ment, precludes him from presently bidding for a package-car
driver position. UPS argues that because Oloyede cannot now
bid for a package-car driver slot, he could never be a “quali-
fied” applicant who would benefit from an injunction. This
argument is a backhanded way of attacking Oloyede’s stand-
                BATES v. UNITED PARCEL SERVICE             16899
ing as a named plaintiff and suggesting that his claim is moot.
Indeed, mootness is described as “the doctrine of standing set
in a time frame.” United States Parole Comm’n v. Geraghty,
445 U.S. 388, 397 (1980) (quoting Henry P. Monaghan, Con-
stitutional Adjudication: The Who and When, 82 YALE L.J.
1363, 1384 (1973)).

   Even if UPS is correct that Oloyede’s claim is either not
redressable or is moot because he is no longer in a driver-
eligible position, questions we do not decide, the remaining
class members are not foreclosed from attaining relief since
the class was long ago duly certified. The Supreme Court has
acknowledged that “there is tension in [its] prior cases” with
respect to standing and adequacy in the class action context.
Gratz v. Bollinger, 539 U.S. 244, 263 n.15 (2003). The same
tension exists with respect to standing and mootness in class
actions. Id. See also Jean Wegman Burns, Standing and Moot-
ness in Class Actions: A Search for Consistency, 22 U.C.D.L.
REV. 1239 (1989). Nonetheless, even amidst these tensions, as
in Gratz, “whether the requirement is deemed one of ade-
quacy or standing [or mootness], it is clearly satisfied in this
case.” Gratz, 539 U.S. at 263. See E. Texas Motor Freight
Sys., Inc. v. Rodriguez, 431 U.S. 395, 406 n.12 (1977) (noting
that it would be error for a district court to dismiss class alle-
gations where it had already certified a class and “only later
had it appeared that the named plaintiffs were not class mem-
bers or were otherwise inappropriate class representatives.”).

   As the Court reasoned in Sosna v. Iowa, once a class action
has been certified, “the class of unnamed persons described in
the certification acquire[s] a legal status separate from the
representative.” Sosna v. Iowa, 419 U.S. 393, 399 (1975).
Sosna involved a class action challenging the constitutionality
of a state statute imposing a one-year residency requirement
for instituting a divorce action. Id. at 397. At the time of the
district court judgment, plaintiff had not yet met the residency
requirement. Id. at 398. By the time the case reached the
Supreme Court, however, plaintiff had not only met the resi-
16900           BATES v. UNITED PARCEL SERVICE
dency requirement but also obtained a divorce in another
state. Id. at 398 & n.7. With regard to mootness, the Supreme
Court held that the “cases or controversies” requirement of
Article III— which requires a plaintiff with a live case or con-
troversy, not only at the time of filing and at the time of class
certification, but also when a court reviews the case—is satis-
fied by “a named defendant and a member of the class repre-
sented by the named plaintiff, even though the claim of the
named plaintiff has become moot.” Id. at 402. As one com-
mentator put it, “[w]hat saved Sosna from being moot was
class certification.” Burns, 22 U.C.D.L. REV. at 1248.

   The following year the Court clarified Sosna in Franks v.
Bowman Transportation Company, 424 U.S. 747 (1976),
which involved a class action against an employer for racially
discriminatory employment practices. Although the named
representative no longer had a personal stake in the outcome
because he had been hired and properly discharged for cause,
the Court held that “[t]he unnamed members of the class
involved are identifiable individuals, individually named in
the record,” and “[n]o questions are raised concerning the
continuing desire of any of these class members for the
seniority relief presently in issue.” Id. at 756.

   The Court cited Franks just one year later in East Texas
Motor Freight and observed that if “the initial certification
was proper and decertification not appropriate, the claims of
the class members would not need to be mooted or destroyed
because subsequent events or the proof at trial had under-
mined the named plaintiffs’ individual claims.” 431 U.S. at
406 n.12.

   [5] These cases are instructive in analyzing class standing
in this appeal. It is not disputed that Oloyede had standing at
the time of certification, which is the snapshot in time for
determining initial standing. Even if his claim later became
moot or nonredressable, an identifiable member of the class,
Elias Habib, surely has standing. According to the district
                BATES v. UNITED PARCEL SERVICE             16901
court, Habib, who is completely deaf, has a valid driver’s
license and twenty-seven years of driving experience. The
district court also found no evidence that he had been
involved in any accidents. Other than the DOT physical,
which Habib failed because of his hearing loss, there was no
other qualification standard that prevented him from applying
for the job. He accordingly satisfies the injury, causation, and
redressability prongs of Lujan and therefore has standing to
seek injunctive relief under the ADA. Because Habib has
standing to seek injunctive relief, the entire federal class has
standing. Armstrong, 275 F.3d at 860-61.

III.   LEGAL FRAMEWORK APPLICABLE TO A “QUALIFICATION
       STANDARD” CLAIM UNDER THE ADA

  A.   INITIAL CONSIDERATIONS

   [6] The hearing standard at issue here is a facially discrimi-
natory qualification standard because it focuses directly on an
individual’s disabling or potentially disabling condition. See,
e.g., McGregor v. Nat’l R.R. Passenger Corp., 187 F.3d 1113,
1116 (9th Cir. 1999) (holding that a policy requiring employ-
ees to be “100% healed” or “fully healed” after an injury is
facially discriminatory and constitutes a per se violation of
the ADA). Instead of recognizing this posture, the district
court analyzed the claim as a “pattern-or-practice” disparate
treatment claim, applying the burden-shifting protocol set out
in Teamsters. See 431 U.S. at 360.

   [7] A burden-shifting protocol is, however, unnecessary in
this circumstance. The fact to be uncovered by such a
protocol—whether the employer made an employment deci-
sion on a proscribed basis (here, disability in the form of hear-
ing impairment)—is not in dispute. 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 burden-shifting framework sometimes applicable to dispa-
rate treatment claims is unnecessary).
16902           BATES v. UNITED PARCEL SERVICE
  [8] In addition, whether Bates established a prima facie
case of employment discrimination in the summary judgment
“burden-shifting” sense is moot after trial. The relevant
inquiry now is simply whether the evidence presented at trial
supports a finding of liability. See U.S. Postal Serv. Bd. of
Governors 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).

  B.    APPLICABLE PROVISIONS OF THE ADA

  [9] The enforcement provision of Title I of the ADA, under
which Bates brought suit, provides:

    No covered entity shall discriminate against a quali-
    fied individual with a disability because of the dis-
    ability 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.

42 U.S.C. § 12112(a). Thus, under the ADA, an employee
bears the ultimate burden of proving that he is (1) disabled
under the Act, (2) a “qualified individual with a disability,”
and (3) discriminated against “because of” the disability.
Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir.
1999).

   There is no dispute that the class members, who are hearing
impaired, are disabled. Instead, we focus on the two other key
terms in the statute: “qualified individual” and “discriminate.”
To unpack the meaning of these terms, we look to the statute.

   [10] A “qualified individual” is “an individual with a dis-
ability who, with or without reasonable accommodation, can
perform the essential functions of the employment position
that such individual holds or desires.” 42 U.S.C. § 12111(8)
                   BATES v. UNITED PARCEL SERVICE                     16903
(emphasis added); see also 29 C.F.R. § 1630.2(m). “Essential
functions” are “fundamental job duties of the employment
position . . . not includ[ing] the marginal functions of the posi-
tion.” 29 C.F.R. § 1630.2(n)(1); see Cripe v. City of San Jose,
261 F.3d 877, 887 (9th Cir. 2001). “If a disabled person can-
not perform a job’s ‘essential functions’ (even with a reason-
able accommodation), then the ADA’s employment
protections do not apply.” Cripe, 261 F.3d at 884-85. “If, on
the other hand, a person can perform a job’s essential func-
tions, and therefore is a qualified individual, then the ADA
prohibits discrimination” with respect to the employment
actions outlined in 42 U.S.C. § 12112(a). Id.

   [11] Discrimination under the ADA includes the use of
“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.” 42 U.S.C.
§ 12112(b)(6) (emphasis added).5 The EEOC regulations
define “qualifications standards” as “the personal and profes-
sional attributes including the skill, experience, education,
physical, medical, safety and other requirements established
by a covered entity as requirements which an individual must
meet in order to be eligible for the position held or desired.”
29 C.F.R. § 1630.2(q).

   [12] In a case involving the use of a qualification standard,
the ADA provides employers with a “business necessity”
defense:
  5
   In the First Amended Complaint, Bates alleged that UPS’s hearing
standard constituted discrimination under § 12112(b)(6), set out above,
and under § 12112(b)(3), which defines discrimination to include “utiliz-
ing standards, criteria, or methods of administration [ ] that have the effect
of discrimination on the basis of disability.” 42 U.S.C. § 12112(b)(3)(A).
The district court, and the parties on appeal, focused only on
§ 12112(b)(6).
16904           BATES v. UNITED PARCEL SERVICE
    It may be a defense to a charge of discrimination
    under this chapter that an alleged application of
    qualification 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 disabil-
    ity has been shown to be job-related and consistent
    with business necessity, and such performance can-
    not be accomplished by reasonable accommodation,
    as required under this subchapter.

42 U.S.C. § 12113(a) (emphasis added).

   Where an across-the-board safety “qualification standard”
is invoked, the question then becomes what proof is required
with respect to being a “qualified individual,” that is, one who
can perform the job’s essential functions. Before an employee
can challenge an employer’s qualification standard, however,
an employee must first prove that he is a “qualified individu-
al” within the meaning of the ADA, that is, one who can per-
form the job’s essential functions with or without reasonable
accommodation. Bates argues that he meets all of the essential
functions of the package-car driver position, including being
a “safe” driver. Although Bates acknowledges that class
members do not meet the DOT hearing standard, he contends
that hearing is not an essential function, and thus there are
qualified individuals who meet UPS’s other job requirements.

   UPS, on the other hand, urges that class members are not
qualified individuals because they cannot meet UPS’s require-
ment that all drivers pass the DOT hearing standard, and thus
cannot meet an essential function of the job—DOT certifica-
tion to drive all commercial vehicles. UPS also argues that
each class member is required to show not only that he is a
“safe” driver in the sense that he has a “clean driving record,”
but also that he is a safe driver despite being hearing
impaired.

   We turn first to the qualified individual inquiry and then to
the question of discrimination.
                BATES v. UNITED PARCEL SERVICE            16905
  C.     QUALIFIED INDIVIDUAL WITH A DISABILITY

   As the plaintiff, Bates bears the burden to prove that he is
“qualified.” See Nunes, 164 F.3d at 1246; Kennedy v.
Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996). Qualifica-
tion for a position is a two-step inquiry. The court first exam-
ines whether the individual satisfies the “requisite skill,
experience, education and other job-related requirements” of
the position. The court then considers whether the individual
“can perform the essential functions of such position” with or
without a reasonable accommodation. 29 C.F.R. § 1630.2(m);
42 U.S.C. § 12111(8); see Humphrey v. Memorial Hospitals
Ass’n, 239 F.3d 1128, 1135 (9th Cir. 2001); see also EEOC
v. Convergys Customer Management Group, Inc., 491 F.3d
790, 794-95 (8th Cir. 2007); Branham v. Snow, 392 F.3d 896,
904 (7th Cir. 2004).

    1.    JOB REQUISITES

   [13] The package-car driver job requires an applicant to
meet UPS’s threshold seniority requirements for the package-
car driver position, complete an application, be at least
twenty-one years of age, possess a valid driver’s license, and
have a clean driving record by UPS’s local standards. The dis-
trict court’s finding that named plaintiff Oloyede and class
member Elias Habib meet these prerequisites is not clearly
erroneous.

    2.    ESSENTIAL FUNCTIONS

   To prove that he is “qualified,” the applicant also must
show that he can perform the “essential functions” of the job.
42 U.S.C. § 12111(8). See Nunes, 164 F.3d at 1246; Kennedy,
90 F.3d at 1481. As noted earlier, a job’s “essential functions”
are “fundamental job duties of the employment position . . .
not includ[ing] the marginal functions of the position.” 29
C.F.R. § 1630.2(n)(1); see also id. § 1630.2(n)(2)-(3) (elabo-
rating on reasons and evidence relevant to an essential func-
16906               BATES v. UNITED PARCEL SERVICE
tion showing). “Essential functions” are not to be confused
with “qualification standards,” which an employer may estab-
lish for a certain position. Whereas “essential functions” are
basic “duties,” 29 C.F.R. § 1630.2(n)(1), “qualification stan-
dards” are “personal and professional attributes” that may
include “physical, medical [and] safety” requirements. Id.
§ 1630.2(q). The difference is crucial.

   The statute does not require that a person meet each of an
employer’s established “qualification standards,” however, to
show that he is “qualified.” And, indeed, it would make little
sense to require an ADA plaintiff to show that he meets a
qualification standard that he undisputedly cannot meet
because of his disability and that forms the very basis of his
discrimination challenge.6

   [14] Although the plaintiff bears the ultimate burden of per-
suading the fact finder that he can perform the job’s essential
functions, we agree with the Eighth Circuit’s approach that
“an employer who disputes the plaintiff’s claim that he can
perform the essential functions must put forth evidence estab-
lishing those functions.” EEOC v. Wal-Mart, 477 F.3d 561,
568 (8th Cir. 2007). The genesis of this rule is the recognition
that “much of the information which determines those essen-
tial functions lies uniquely with the employer.” Benson v. Nw.
Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir. 1995). In addition,
  6
    While the plain language of the statute suffices to support our conclu-
sion, it bears noting that the legislative history favors our reading as well.
One of the Senate committee reports states that the qualification standard
section of the ADA was meant to apply to “a person with a disability
[who] applies for a job and meets all selection criteria except one that he
or she cannot meet because of a disability.” S. Rep. No. 101-116, at 37
(1989) (emphasis added). The legislative history also cites with approval
Prewitt v. U.S. Postal Serv., 662 F.2d 292, 306 (5th Cir. 1981) (cited by
H. Rep. No. 101-485(III), at 42) (1990) reprinted in 1990 U.S.C.C.A.N.
445, 446, a Rehabilitation Act case that adopted the same prima facie case
standard adopted here. See Prewitt, 662 F.2d at 306 (requiring the plaintiff
to prove as part of his prima facie case “that he is qualified for the position
under all but the challenged criteria” (emphasis added)).
                  BATES v. UNITED PARCEL SERVICE                   16907
the ADA and implementing regulations direct fact finders to
consider, among other things, “the employer’s judgment as to
what functions of a job are essential,” 42 U.S.C. § 12111(8);
job descriptions prepared before advertising or interviewing
applicants, id.; “[t]he amount of time spent on the job per-
forming the function,” 29 C.F.R. § 1630.2(n)(3)(iii); “[t]he
consequences of not requiring the [applicant or employee] to
perform the function,” id. § 1630.2(n)(3)(iv); and the work
experience of current and former employees. Id. § 1630.2(n)
(3)(vi), (vii). Thus, to the extent that an employer challenges
an ADA plaintiff’s claim that he can perform the job’s essen-
tial functions, we think it appropriate to place a burden of pro-
duction on the employer to come forward with evidence of
those essential functions. See Wal-Mart, 477 F.3d at 568;
Benson, 62 F.3d at 1113.

   [15] At trial the parties agreed that two of the “essential
functions” of the package-car driver position are (1) “the abil-
ity to communicate effectively” and (2) “the ability to drive
safely.” UPS urged that “the ability to drive DOT-regulated
vehicles” was another essential function. The district court
rejected that contention, finding that UPS permits other driv-
ers who cannot drive all DOT-regulated vehicles to drive
package cars.7 For example, UPS has protocols in place for
driver applicants who cannot pass certain DOT certification
requirements because of their vision impairments or insulin-
dependent diabetes, but who can pass less stringent physical
requirements. UPS has not shown that the district court’s
determination that DOT certification is not an essential job
function was clearly erroneous. See, e.g., Taylor v. Rice, 451
F.3d 898, 907 (D.C. Cir. 2006) (concluding that issues of fact
regarding job’s essential functions precluded summary judg-
ment for employer because record showed that, in practice,
  7
   The determination of essential functions is a factual finding we review
for clear error. See EEOC v. E.I. Du Pont de Nemours & Co., 480 F.3d
724, 730 (5th Cir. 2007) (“Appellate review of the jury’s determination of
the essential functions of [the employee’s] job is highly deferential.”).
16908              BATES v. UNITED PARCEL SERVICE
employer did not require all other employees to abide by
claimed essential function); Davidson v. Am. Online, Inc., 337
F.3d 1179, 1191 (10th Cir. 2003) (“The question of whether
a job requirement is a necessary requisite to employment ini-
tially focuses on whether an employer actually requires all
employees in the particular position to satisfy the alleged job-
related requirement.”).

   Only the second essential function, “safe driving,” is at
issue in this appeal. UPS argues that “hearing” at a level suffi-
cient to pass the DOT hearing standard is either a stand-alone
essential job function or part and parcel of being a safe driver.
This point illustrates the critical difference between a job’s
essential functions—“effective communication” or “safe
driving”—versus a qualification standard based on “personal
or professional attributes,” such as hearing at a certain level.
The question, then, is whether plaintiffs established that they
meet the essential function of safe driving.

  The district court found that Oloyede met UPS’s threshold
requirements of having no accidents or moving violations
within the last year, no DUI within the last three years, and
no more than three moving violations in the last three years.
Habib also met the prerequisites to apply for the position: a
valid driver’s license, twenty-seven years of driving experi-
ence, and no evidence of even a minor traffic accident.8

   UPS urges that Oloyede and Habib are required to show not
only that they are “safe” drivers in the sense that they have a
“clean driving record,” but also that they are safe drivers even
though they are hearing impaired. The district court rejected
that argument, stating that imposing this burden would require
plaintiffs to disprove the employer’s business necessity affir-
mative defense, i.e., that the employer is justified in imposing
  8
   It appears from the record (though it is not entirely clear) that neither
Oloyede nor Habib was permitted to take UPS’s road test or proceed to
driver training because they could not meet the DOT hearing standard.
                BATES v. UNITED PARCEL SERVICE             16909
a qualification standard that facially screens out individuals
with a specific disability.

   Because UPS has linked hearing with safe driving, UPS
bears the burden to prove that nexus as part of its defense to
use of the hearing qualification standard. The employees,
however, bear the ultimate burden to show that they are quali-
fied to perform the essential function of safely driving a pack-
age car. In so doing, Oloyede and Habib need not disprove the
validity of the hearing standard, but must demonstrate their
safe driving ability vis-a-vis package cars. The inquiry is not
whether Oloyede and Habib are capable of safely driving their
personal cars, but rather whether they can drive the package
cars at issue in this litigation. The district court did not make
a finding with respect to plaintiffs’ ability to drive package
cars safely. Merely finding an absence of evidence with
respect to driving a package car is insufficient. In short,
Oloyede and Habib bear the burden of proving that they are
qualified individuals with disabilities. They must show that
they can perform the essential job function of safely driving
package cars. Only if they meet this burden does the question
become whether the qualification standard used by the
employer satisfies the business necessity defense.

   [16] By requiring UPS to justify the hearing test under the
business necessity defense, but also requiring plaintiffs to
show that they can perform the essential functions of the job,
we are not saying, nor does the ADA require, that employers
must hire employees who cannot safely perform the job, par-
ticularly where safety itself is an essential function. Nor are
we saying that an employer can never impose a safety stan-
dard that exceeds minimum requirements imposed by law.
However, when an employer asserts a blanket safety-based
qualification standard—beyond the essential job function—
that is not mandated by law and that qualification standard
screens out or tends to screen out an individual with a disabil-
ity, the employer—not the employee—bears the burden of
showing that the higher qualification standard is job-related
16910           BATES v. UNITED PARCEL SERVICE
and consistent with business necessity, and that performance
cannot be achieved through reasonable accommodation.
42 U.S.C. § 12113(a).

   This approach is parallel to the one adopted in a “direct
threat” case under the ADA. 42 U.S.C. § 12113(b) (“The term
‘qualification standards’ may include a requirement that an
individual shall not pose a direct threat to the health or safety
of other individuals in the workplace.”). Although the specif-
ics of proof in direct threat and business necessity cases may
vary, the frameworks are parallel. We emphasize that UPS is
not required to meet the requirements of the direct threat
defense, but rather that cases under that section of the ADA
illuminate our analysis.

   In Branham, the Seventh Circuit considered a qualification
standard that disqualified an individual from being an IRS
criminal investigator if the applicant had “[a]ny condition that
would hinder full, efficient performance of the duties of the[ ]
position[ ] or that would cause the individual to be a hazard
to himself/herself or to others . . . .” 392 F.3d at 900 (quoting
IRS qualification standard). Safety was an issue in Branham,
as it is here. The parties did not dispute that an essential job
requirement was the ability to function safely under the work-
ing conditions imposed on such employees. Id.

   The IRS claimed that the applicant’s diabetes placed him at
risk of “subtle and/or sudden incapacitation, which would
place the applicant and others . . . at an extreme risk of safety
that would be unacceptable.” Id. (citation and quotation marks
omitted). The IRS also argued that the applicant bore the bur-
den of establishing as part of his prima facie case that he did
not pose a direct threat to himself or others. Id. at 906. In
rejecting the IRS’s position, the Seventh Circuit concluded
that the applicant need only establish that he was “otherwise
qualified” for the criminal investigator job by meeting the
job’s “essential functions.” Id. at 904-05. And, because the
IRS’s “safety” qualification standard regarding the medical
               BATES v. UNITED PARCEL SERVICE            16911
condition incorporated the “direct threat” defense under the
ADA, the employer bore the burden of proving that the
employee was a direct threat. Id. at 906-07. The employee did
not have to disprove the claim that he was a direct threat as
part of his prima facie case of discrimination. Id. at 906-07.

   The Branham approach works equally well in framing our
analysis of UPS’s hearing qualification standard. The
employee does not bear the burden to invalidate the employ-
er’s safety-based qualification standard. Nor is the employee
required to disprove UPS’s contention that, in order to be
safe, the driver must pass the DOT hearing standard—the
very qualification standard disputed in this case. See, e.g.,
Cripe, 261 F.3d at 889-90 (holding that a service requirement
that rendered only disabled officers ineligible for specialized
assignments could not be applied to them unless it was shown
to be job-related and consistent with business necessity, and
performance could not be achieved through reasonable
accommodation); McGregor, 187 F.3d at 1116 (explaining
that the ADA generally requires individualized assessment of
whether a qualified individual is able to perform essential
functions with or without reasonable accommodation, rather
than use of blanket qualification standards, like a “100%
healed” or “fully healed” policy, as substitute for such indi-
vidualized determination).

   Similar to the court in Branham, we conclude that an
employee who shows that he meets the basic qualifications
for the package-car driver position (seniority, twenty-one
years of age, and holding a valid driver’s license) and can
drive a package car safely, including having a clean driving
record and passing the driving test, is an otherwise qualified
individual.

   The last step of the “qualified individual” inquiry requires
a plaintiff to show that he is qualified “with or without rea-
sonable accommodation.” 42 U.S.C. § 12111(8). If the plain-
tiff proves that he can perform the job’s essential functions
16912             BATES v. UNITED PARCEL SERVICE
either without a reasonable accommodation or with such an
accommodation, then he has met his burden to show he is
qualified. See McGregor, 187 F.3d at 1115; Deane v. Pocono
Med. Ctr., 142 F.3d 138, 146 (3d Cir. 1998) (en banc). Here,
the district court did not explicitly discuss reasonable accom-
modation, although in finding that Oloyede and Habib met the
job requisites and could perform the essential function of safe
driving, it implicitly found that no accommodation was neces-
sary to meet those baseline requirements for UPS package-car
driver applicants.9

   [17] Because the district court did not analyze whether
Oloyede and Habib are “qualified individuals” capable of per-
forming the “essential function” of safely driving a package
car in the framework discussed above, nor did it directly
undertake the “qualified individual” inquiry, we remand to the
district court for the employees to prove that they are so quali-
fied and for an analysis of reasonable accommodation. Thus,
we vacate the district court’s order denying UPS’s motion for
judgment on partial findings under Rule 52(c), and in the
alternative to decertify the nationwide class under
Rule 23(c)(1) and (d).

  D.    DISCRIMINATION BECAUSE OF DISABILITY

   An employee bears the burden of proving that he was dis-
criminated against “because of” a disability. 42 U.S.C.
§ 12112(a). See Costa, 299 F.3d at 857 (“The employee’s ulti-
mate burden of proof in all cases remains the same: to show
by a preponderance of the evidence that the challenged
employment decision was ‘because of’ discrimination.”). The
qualification standard at issue—the DOT hearing standard—is
facially discriminatory and falls squarely within the ADA’s
definition of discrimination. 42 U.S.C. § 12112(b)(6)
(“discrimination” includes using qualification standards,
  9
    The question of reasonable accommodation also arises in the context
of the business necessity defense, as discussed below in § III.E.
                  BATES v. UNITED PARCEL SERVICE                 16913
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”).

   The district court found, and UPS does not contest, that
UPS applies a qualification standard that has the effect of dis-
criminating on the basis of disability and/or screens out the
class of employees who cannot pass the DOT hearing stan-
dard. See 42 U.S.C. § 12112(b)(6). Such discrimination vio-
lates the ADA unless UPS can prove a valid defense to its use
of the DOT hearing standard. We therefore turn to UPS’s
defense that its reliance on the DOT hearing standard is justi-
fied under the business necessity defense.

  E.    EMPLOYER’S “BUSINESS NECESSITY” DEFENSE

   Under the ADA, an employer may assert an affirmative
defense to a claim that application of a qualification standard,
test or selection criteria discriminates on the basis of disabil-
ity. See 42 U.S.C. § 12113(a); Albertson’s, 527 U.S. at 568.
Although the shorthand reference is the “business necessity”
defense, the defense also incorporates requirements of job-
relatedness and reasonable accommodation.

   [18] We most recently addressed the ADA’s business
necessity defense in Morton, 272 F.3d 1249. There, we held
that the ADA’s version of the business necessity defense
incorporates concepts from both the traditional Title VII busi-
ness necessity defense to disparate impact claims and the
BFOQ defense in Title VII and Age Discrimination in
Employment Act (ADEA) disparate treatment challenges to a
proscribed classification. Id. at 1260-63. Today, we revisit our
conception of the business necessity defense under the ADA
and overrule Morton to the extent that it conflicts with this opin-
ion.10 Specifically, we reject Morton’s adaptation of the
  10
    We do agree with Morton’s conclusion that the ADA’s business
necessity defense may be asserted to defend against disparate treatment,
16914             BATES v. UNITED PARCEL SERVICE
Title VII and ADEA BFOQ safety standard requirement in
the ADA context.

  [19] We look first and foremost to the text of the ADA:

     It may be a defense to a charge of discrimination
     under this chapter that an alleged application of
     qualification 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 disabil-
     ity has been shown to be job-related and consistent
     with business necessity, and such performance can-
     not be accomplished by reasonable accommodation,
     as required under this subchapter.

42 U.S.C. § 12113(a) (emphasis added). To successfully
assert the business necessity defense to an allegedly discrimi-
natory application of a qualification standard, test or selection
criteria, an employer bears the burden of showing that the
qualification standard is (1) “job-related,” (2) “consistent with
business necessity,” and (3) that “performance cannot be
accomplished by reasonable accommodation.” Id.; see Cripe,
261 F.3d at 890 (holding that the employer bears the burden
of proving affirmative defense of business necessity).

   Rather than analyzing each of these statutory components
of the business necessity defense, Morton looked to other pro-
visions of the ADA (the “qualified individual” requirement,
the “undue hardship” defense, and the “reasonable accommo-
dation” provision of the business necessity defense), and con-
cluded that these provisions “suggest that Congress must have

disparate impact, and failure to accommodate claims under the ADA.
Morton, 272 F.3d at 1260-61 (discussing interplay among 42 U.S.C.
§ 12112(b)’s various definitions of discrimination and § 12113(a)’s provi-
sion of the business necessity defense); see Raytheon Co. v. Hernandez,
540 U.S. 44, 52-53 (2003) (recognizing applicability of business necessity
defense to both disparate treatment and disparate impact claims under the
ADA).
                     BATES v. UNITED PARCEL SERVICE                   16915
intended to permit across-the-board exclusion of employees
based upon disability-related safety criterion only on a show-
ing somewhat similar to the one used for safety qualifications
under the Title VII and ADEA [BFOQ] standard.” Morton,
272 F.3d at 1261-62. We mistakenly concluded that “[i]f a
transportation employer can demonstrate neither that all per-
sons who fail to meet a disability-related safety criterion pre-
sent an unacceptable risk of danger nor that it is highly
impractical more discretely to determine which disabled
employees present such an unacceptable risk—the Title VII/
ADEA [BFOQ] safety standard requirements—we would not
think that the safety criterion would provide an accurate mea-
sure of actual ability.” Id. at 1263.

   [20] However, as Morton recognized, “there is no [BFOQ]
defense as such in the ADA.” Id. at 1261. UPS argues, and we
agree, that it is improper to import the BFOQ standard into
the ADA business necessity defense. Instead, we return to the
statutory provisions Congress set out for the ADA’s version
of the business necessity defense.

   To show “job-relatedness,” an employer must demonstrate
that the qualification standard fairly and accurately measures
the individual’s actual ability to perform the essential func-
tions of the job. See Cripe, 261 F.3d at 890; H.R. Rep. No.
101-485 (III), at 32 (1990), reprinted in 1990 U.S.C.C.A.N.
445, 454-55;11 see also Belk v. Sw. Bell Tel. Co., 194 F.3d 946
(8th Cir. 1999);12 Hendricks-Robinson v. Excel Corp., 154
  11
      “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
criterion must concern an essential, and not marginal, aspect of the job . . .
[and] be carefully tailored to measure the actual ability of a person to per-
form an essential function of the job.” H.R. Rep. No. 101-485 (III), at 32
(1990), reprinted in 1990 U.S.C.C.A.N. 445, 454-55.
   12
      In Belk, the Eighth Circuit formulated its test as follows:
       An employer urging a business necessity defense must validate
       the test or exam in question for job-relatedness to the specific
16916             BATES v. UNITED PARCEL SERVICE
F.3d 685, 699 (7th Cir. 1998). When every person excluded
by the qualification standard is a member of a protected class
—that is, disabled persons—an employer must demonstrate a
predictive or significant correlation between the qualification
and performance of the job’s essential functions. Albermarle
Paper Co. v. Moody, 422 U.S. 405, 431 (1975); Cf. Clady v.
County of Los Angeles, 770 F.2d 1421, 1432 (9th Cir. 1985)
(“As a general principle, the greater the test’s adverse impact,
the higher the correlation which will be required.”) (analyzing
business necessity defense to Title VII disparate impact
claim).

   [21] To show that the disputed qualification standard is
“consistent with business necessity,” the employer must show
that it “substantially promote[s]” the business’s needs. Cripe,
261 F.3d at 890 (quoting Bentivegna v. U.S. Dep’t of Labor,
694 F.2d 619, 621-22 (9th Cir. 1982) (interpreting the term
“business necessity” for purposes of the Rehabilitation Act of
1973)). As we observed in Cripe: “The ‘business necessity’
standard is quite high, and is not to be confused with mere
expediency.” Cripe, 261 F.3d at 890 (citation, quotation
marks and alteration omitted). For a safety-based qualification
standard, “[i]n evaluating whether the risks addressed by . . .
[the] qualification standard constitute a business necessity, the
court should take into account the magnitude of possible harm
as well as the probability of occurrence.” EEOC v. Exxon
Corp., 203 F.3d 871, 875 (5th Cir. 2000) (noting that “[t]he
acceptable probability of an incident will vary with the poten-
tial hazard posed by the particular position: a probability that
might be tolerable in an ordinary job might be intolerable for
a position involving atomic reactors, for example”).

    skills and physical requirements of the sought-after position. Fur-
    thermore, an examiner must consider meaningful work-related
    information, including the type of activity to be performed [and]
    the level and duration of effort required.
Belk, 194 F.3d at 951 (citation and quotation marks omitted).
                   BATES v. UNITED PARCEL SERVICE                     16917
   [22] Finally, to show that “performance cannot be accom-
plished by reasonable accommodation,” the employer must
demonstrate either that no reasonable accommodation cur-
rently available would cure the performance deficiency or that
such reasonable accommodation poses an “undue hardship”
on the employer.13 See 42 U.S.C. §§ 12113(a), 12111(10)
(defining “undue hardship”). See McGregor, 187 F.3d at
1116; see also Hendricks-Robinson, 154 F.3d at 699 (“Even
when ‘physical fitness’ is a selection criterion that is related
to an essential function of the job . . . it ‘may not be used to
exclude an individual with a disability if that individual could
satisfy the criterion with the provision of a reasonable accom-
modation.’ ”) (quoting 29 C.F.R. pt. 1630, App. § 1630.10)
(quotation marks and alterations omitted).

   The ADA does not provide a comprehensive recitation of
what is encompassed by a reasonable accommodation, but
gives some examples of what the term “may include.” 42
U.S.C. § 12111(9); 29 C.F.R. § 1630.2(o)(2); see also 29
C.F.R. §§ 1630.2(o)(1) (defining “reasonable accommoda-
tion” to include “[m]odifications or adjustments” to applica-
tion processes, work environment, and access to benefits and
privileges of employment). Among the examples are accom-
modations such as:

     (A) making existing facilities used by employees
     readily accessible to and usable by individuals with
     disabilities; and

     (B) job restructuring, part-time or modified work
     schedules, reassignment to a vacant position, acqui-
     sition or modification of equipment or devices,
     appropriate adjustment or modifications of examina-
   13
      S. Rep. No. 101-116, at 27 (“[T]his legislation prohibits use of a blan-
ket rule excluding people with certain disabilities except in the very lim-
ited 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.”
16918              BATES v. UNITED PARCEL SERVICE
       tions, training materials or policies, the provision of
       qualified readers or interpreters, and other similar
       accommodations for individuals with disabilities.

42 U.S.C. § 12111(9). Making a showing as to reasonable
accommodation “may entail adopting an alternative, less dis-
criminatory criterion.” H.R. Rep. 101-485(II), 1990
U.S.C.C.A.N. 303, 354 (1990); accord S. Rep. No. 101-116.

   [23] In rejecting UPS’s business necessity defense to appli-
cation of the DOT hearing standard to all package-car driving
positions, the district court concluded that “UPS has demon-
strated neither that all or substantially all deaf drivers pose a
higher risk of accidents than non-deaf drivers nor that there
are no practical criteria for determining which deaf drivers
pose a heightened risk and which do not. Additionally, UPS
has not demonstrated that it would be impossible to develop
empirical evidence that would be sufficient to make either
showing.” This finding does not track the statutory elements
of the business necessity defense. Because the district court
understandably based its rationale on the then-extant Morton
framework, we vacate the finding that UPS violated Bates’s
rights under the ADA, vacate the injunction, and remand for
proceedings consistent with this opinion. We leave to the dis-
trict court the determination whether additional evidence is
appropriate in light of the significant change in the legal land-
scape of this case.14

   One further aspect of Morton bears noting here. As part of
its business necessity analysis under Morton, the district court
  14
     Application of the business necessity defense is fact-intensive and
requires close analysis by the district court. We note, however, that the
employer is entitled to use a method of selecting drivers that will retain
the overall safety record of its driver pool. Any suggestion in the district
court’s opinion that hearing-impaired drivers may be held to a lower
safety standard than hearing drivers is disapproved. Ultimately, a disabled
driver bears the burden to demonstrate that he can safely drive a package
car.
                BATES v. UNITED PARCEL SERVICE             16919
also rejected UPS’s reliance on the DOT’s hearing standard.
The district court pointed to Morton’s statement that “the
existence of the—by its own terms inapplicable—DOT stan-
dard cannot shoulder UPS’s statutory burden” to show busi-
ness necessity. Morton, 272 F.3d at 1264-65 (holding that the
mere existence of government safety standard did not demon-
strate UPS’s business necessity defense and fact issues pre-
cluded summary judgment).

   Here, UPS offered up the DOT standard as evidence that,
for safety purposes, a certain level of hearing is necessary to
drive non-DOT-regulated vehicles. According to UPS, there
is complete congruity between the positions of driving a
DOT-regulated package car (more than 10,000 pounds) and
driving a vehicle that weighs a little less. UPS argued that
package cars weighing almost five tons do not have operating
characteristics similar to passenger cars and pose greater risks
than do passenger cars.

   To be sure, DOT’s regulation does not apply to the cate-
gory of vehicles at issue in this case. However, that circum-
stance does not mean that the standard has no relevance to the
employer’s safety argument. UPS is entitled to use as some
evidence of its business necessity defense the fact that it relied
on a government safety standard, even where the standard is
not applicable to the category of conduct at issue. To the
extent Morton suggests or is interpreted to the contrary, it is
overruled. Cf. Albertson’s, 527 U.S. at 577 (holding that an
employer is not required to justify its decision to require that
employees meet an applicable government safety regulation,
even if the government permits waiver of the applicable
requirements under an experimental policy). The parallel con-
sideration applies to an employee; that is, an employee may
offer as evidence challenging the validity or applicability of
a safety standard the government’s refusal to adopt such stan-
dard to govern the conduct at issue. See, e.g., 53 Fed. Reg.
18042, 18044 (discussing DOT’s rejection of UPS’s attempt
to apply DOT’s physical requirements to trucks under 10,000
16920           BATES v. UNITED PARCEL SERVICE
pounds because (1) smaller trucks and vans have “operating
characteristics” more comparable to cars; and (2) smaller
trucks and vans pose a lesser “safety risk” than large trucks).

   Thus, while certainly not dispositive of UPS’s showing of
job-relatedness, business necessity or the reasonableness of
potential accommodations, UPS’s reliance on the government
safety standard with respect to other vehicles in its fleet
should be entitled to some consideration as a safety bench-
mark. Whether, as UPS puts it, “non-DOT package cars in the
UPS fleet share significant risk characteristics with their
slightly larger cousins” is a factual question of the congruity
between vehicles and drivers in UPS’s non-DOT fleet and
those regulated by DOT. See Johnson v. Mayor & City Coun-
cil, 472 U.S. 353, 371 (1985) (federal rules on mandatory
retirement age for firefighters may be relevant to nonfederal
firefighters, depending on congruity of the occupations). We
leave it to the fact finder to determine how much weight to
give such evidence.

IV.     CALIFORNIA STATE LAW CLAIMS

  A.     FEHA

   UPS challenges the district court’s holding that it violated
the FEHA, arguing that there is no “qualified” plaintiff under
the FEHA’s requirements. UPS also argues that because dif-
ferent defenses are available under the FEHA than the ADA,
the district court erred in concluding that because UPS vio-
lated the ADA, it a fortiori violated the FEHA with respect
to the California subclass of plaintiffs.

   [24] The California Supreme Court recently interpreted the
FEHA as in accord with the ADA’s requirement that a plain-
tiff asserting disability discrimination bears the burden of
proving that he is a “qualified individual.” Green v. Califor-
nia, 64 Cal. Rptr. 3d 390, 396 (Ca. 2007). In a supplemental
submission to this court, UPS, citing Green, contends that
               BATES v. UNITED PARCEL SERVICE             16921
Oloyede—a named plaintiff and class representative of the
California subclass—has not met his burden to show that he
is a qualified individual within the meaning of the FEHA.
UPS argues, as it did with respect to the ADA claims, that
Oloyede is not qualified because he is unable to pass the DOT
hearing test and he has not otherwise demonstrated that he can
drive package cars safely.

  As the court in Green explained:

    Under the FEHA, it is unlawful “[f]or an employer,
    because of the race, religious creed, color, national
    origin, ancestry, physical disability, mental disabil-
    ity, medical condition . . . of any person, . . . to bar
    or to discharge the person from employment or from
    a training program leading to employment, or to dis-
    criminate against the person in compensation or in
    terms, conditions, or privileges of employment.”
    [Cal. Gov’t Code § 12940(a)] Although section
    12940 proscribes discrimination on the basis of an
    employee’s disability, it specifically limits the reach
    of that proscription, excluding from coverage those
    persons who are not qualified, even with reasonable
    accommodation, to perform essential job duties:
    “This part does not prohibit an employer from refus-
    ing to hire or discharging an employee with a physi-
    cal or mental disability . . . where the employee,
    because of his or her physical or mental disability, is
    unable to perform his or her essential duties even
    with reasonable accommodations, or cannot perform
    those duties in a manner that would not endanger his
    or her health or safety or the health or safety of oth-
    ers even with reasonable accommodations.”
    (§ 12940, subd. (a)(1).)

Id. at 395.

  Thus, a plaintiff asserting a disability employment discrimi-
nation claim under the FEHA must show that he is a “quali-
16922              BATES v. UNITED PARCEL SERVICE
fied individual,” meaning that he “can perform the essential
duties of the employment position with reasonable accommo-
dation.” Id. at 397 (citing Cal. Gov’t Code § 12940(a)(1)).
The court further observed: “We see no statutory basis for
construing the FEHA any differently from the ADA with
regard to a plaintiff employee’s burden of proof.” Id.

   [25] The bases for UPS’s challenge to Oloyede’s “qualified
individual” status under the FEHA are identical to the argu-
ments we rejected with respect to his qualified individual
showing under the ADA.15 Because we are vacating the dis-
trict court’s determination that Oloyede and Habib were
“qualified individuals” under the ADA, we likewise vacate
the district court’s finding that the two were “qualified indi-
viduals” in the FEHA context.

   After the district court’s decision, we had occasion to
address the interplay between the defenses in the FEHA and
the ADA. In EEOC v. United Parcel Service, Inc., we
observed that the FEHA’s “safety-of-others defense has no
direct analogue 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 lia-
ble under the FEHA, arguing, among other things, that it has
satisfied the FEHA’s safety-of-others defense.

   Because our clarification of the applicable legal standard
may bear on the district court’s analysis, we do not address
the finding that UPS violated the FEHA. Instead, on remand,
the district court will have ample opportunity to reconsider
this issue in light of EEOC v. United Parcel Service, Inc. See
424 F.3d at 1075 (“FEHA’s safety-of-others defense requires
  15
    UPS also argues that Oloyede is an inadequate class representative
because he is unable to bid for a package-car driver position from his cur-
rent position with UPS. We disposed of this argument with respect to the
issue of standing and conclude that the scope of relief, if any, is best
addressed by the district court on remand.
                   BATES v. UNITED PARCEL SERVICE                   16923
an individualized showing that safety would be compromised
by each [employee’s] performance of driving duties,”
although “[c]ategorical evidence can be relevant.”).

  B.     UNRUH ACT

   UPS also appeals the district court’s holding that it violated
the Unruh Act. 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.

Cal. Civ. Code § 51(b). Section 51(f) of the Unruh Act pro-
vides that “[a] violation of the right of any individual under
the Americans with Disabilities Act of 1990 shall also consti-
tute a violation of this section.” Id. § 51(f) (citation omitted).
Bates contends that because UPS violated the ADA’s employ-
ment law provisions, it follows from section 51(f) that UPS
also violated the Unruh Act.

   [26] Bates’s argument is foreclosed by our recent decision
in Bass v. County of Butte, in which we held that the Unruh
Act does not incorporate the employment discrimination pro-
visions under Title I of the ADA. See 458 F.3d at 982. We
reverse the district court’s conclusion that the Unruh Act
serves as a basis for relief against UPS.16
  16
     A California Court of Appeal held similarly in Williams v. Genentech,
Inc., 42 Cal. Rptr. 3d 585 (Cal. Ct. App. 2006). On August 23, 2006, the
California Supreme Court granted review of Williams, 49 Cal. Rptr. 3d
210 (2006), but deferred briefing pending the decision in Green v. Califor-
16924              BATES v. UNITED PARCEL SERVICE
V.    INJUNCTION

   The district court stayed enforcement of its injunction
pending UPS’s interlocutory appeal. We vacate the injunction
and remand to the district court for further proceedings con-
sistent with this opinion.

 VACATED IN PART, REVERSED IN PART, AND
REMANDED. Each party shall bear its own costs on appeal.



BERZON, Circuit Judge, with whom Circuit Judge REIN-
HARDT joins, concurring in part, dissenting in part, and con-
curring in the judgment:

   I would approach the “qualified individual” and Depart-
ment of Transportation (DOT) hearing standard inquiries dif-
ferently than does the majority, but do agree that this case
must be remanded for re-examination under the majority’s
statement of the business necessity framework. I therefore
concur only in Parts I, II, III(A)-(C)(1), III(D), III(E), IV(B),
and V of the majority opinion, and in the judgment.1

nia. Now that the decision in Green has been issued, if the California
Supreme Court reaches a different conclusion in Williams than we did in
Bass, our holding here will not be the law of the case. See Dimidowich v.
Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986) (writing that a federal
appellate court “will follow a state supreme court’s interpretation of its
own statute in the absence of extraordinary circumstances”); Ingle v. 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’s Unruh Act claim.
  1
    To be clear: I do not concur in Parts III(C)(2) and IV(A), and in any
portion of the majority opinion that restates the holdings of those sections.
                BATES v. UNITED PARCEL SERVICE             16925
                               I.

   The majority holds that to be “qualified individuals with
disabilities” Oloyede and Habib (or some other member of the
class) must show that they can “perform the essential job
function of safely driving package cars.” Maj. Op. at 16909.
The majority opinion is entirely unclear, however, as to how
they are to do so. In my view, such a requirement can be
squared with the statute and with the complaint in this case,
if at all, only if understood as imposing a definable, threshold
burden.

                               1.

   Oloyede and Habib ask in their complaint just that the dis-
trict court order UPS to “individually assess . . . hearing dis-
abled workers to determine if they are able to safely drive
vehicles where DOT regulations are not applicable.” In other
words, although the plaintiffs certainly hope eventually to
become package car drivers, they are not seeking to bypass
UPS’s package car driver testing, training, and probation pro-
grams and be placed directly into the driver’s seat. The dis-
trict court explicitly limited its relief to mandating individual
assessment.

   UPS’s requirements and programs are extensive. First,
applicants must have adequate seniority and clean driving
records to begin the application process. Then, in addition to
the DOT physical, applicants must pass a driving test to enter
the program. If they pass, they enter a driving training course
with both on-the-road and classroom components. If they pass
that course, they embark on a thirty-day probationary period,
with supervisors sometimes riding along. Only if they pass all
these hurdles do those who enter the program become UPS
package car drivers.

   The majority opinion would require the plaintiffs to bear
the ultimate burden of proving that they will be safe package
16926              BATES v. UNITED PARCEL SERVICE
car drivers, so as to show that they are qualified persons with
disabilities. But, perhaps because it does not recognize the
limited nature of the relief sought, the majority leaves unclear
what it is asking of the district court and of the parties on
remand with regard to that requirement.

   Requiring the plaintiffs to prove that they will be safe pack-
age car drivers, as the majority opinion does, will unnecessar-
ily complicate this litigation on remand. “Safe” is not a self-
defining term, and particularly is not so in the context of
industrial safety decisions; nor is it self-evident whether any
particular scheme for predicting whether a person who has
never driven a package car safely will be able to do so is
likely to yield valid results.2 Thus, asking Oloyede and Habib
to prove that they are “safe” without providing guidance as to
how they are to do so, or as to how “safe” is “safe” in this
context, presents the litigants and the district court with an ill-
defined and complicated puzzle. Yet, such a requirement is
extraneous given the limited nature of the relief Oloyede and
Habib seek. UPS has designed evaluation methods using its
own vehicles to test for the degree of safety it requires, so it
makes little sense to suggest that Oloyede and Habib must
devise, validate, and pass their own safety tests and training
programs before they may sue to take UPS’s tests and training
programs — which, again, is all that they seek to do.

   Here, what makes sense is to require the plaintiffs to meet
UPS’s threshold requirements for entry into the package car
driver testing and training program. UPS itself will then be
able individually to evaluate them for the job they desire,
according to UPS’s own standards and methods (with appro-
  2
   Industrial “safety” is necessarily a relative concept. Companies such as
UPS must accept that their operations can never be perfectly safe, and so
must determine the level of risk they are willing to take. Deciding whether
a given activity is sufficiently “safe” thus requires balancing the accept-
ability (in both moral and financial terms) of a certain degree of risk
against the costs of avoiding the risk and the company’s human resources
needs.
                    BATES v. UNITED PARCEL SERVICE                     16927
priate accommodations, if requested and if the need for them
is proven, see 42 U.S.C. § 12111(8)-(9) (defining “qualified
individual” and “reasonable accommodation”); Dark, 451
F.3d at 1088 (explaining the reasonable accommodation pro-
cess)).3

   Practically speaking, under the approach I suggest, once a
deaf applicant shows that he meets the normal threshold qual-
ifications for eligibility — that he is at least twenty-one years
of age, possesses a valid driver’s license, and has a clean driv-
ing record by UPS’s local standards — he has met his burden
of proof in this regard. It is then UPS’s burden to show, if it
desires to adopt as a threshold requirement a minimum hear-
ing level such as the DOT standard, that it can establish under
  3
    I note that to recognize that Oloyede and Habib suffer a discriminatory
wrong when they are rendered ineligible to compete for a driver job by
being barred from becoming candidates for the job is consistent with
antidiscrimination law generally. In Regents of the University of Califor-
nia v. Bakke, 438 U.S. 265, 281 n. 14 (1978), the Supreme Court rejected
the notion that Bakke, who was challenging medical school admissions
affirmative action policies that he contended discriminated against him,
was required to “prove that he would have been admitted in the absence
of the [policies]” to have standing to challenge them. Rather, “the Univer-
sity’s decision not to permit Bakke to compete for all 100 places in his
class, simply because of his race,” satisfied the injury requirement. Id.
   Similarly, in Northeast Florida Chapter of the Associated General Con-
tractors of America v. Jacksonville, 508 U.S. 656, 664 (1993), a contractor
group could challenge a city’s affirmative action policy without having to
show that “one or more of its members would have been awarded a con-
tract but for the challenged ordinance.” Rather, the injury is “the denial of
equal treatment resulting from the imposition of the barrier, not the ulti-
mate inability to obtain the benefit.” Id. at 666. “The injury in cases of this
kind is that a ‘discriminatory classification prevent[s] the plaintiff from
competing on an equal footing.” Adarand Constructors, Inc. v. Pena, 515
U.S.200, 211 (1995) (quoting Northeast Florida, 508 U.S. at 667) (alter-
ation in original); see also Bras v. California Public Utility Comm’n, 59
F.3d 869, 873 (9th Cir. 1995) (following this analysis). The injury suffered
by Oloyede and Habib is manifestly of this type. It would be strange to
construe the ADA as out of harmony with general antidiscrimination and
equal protection law.
16928           BATES v. UNITED PARCEL SERVICE
the business necessity test that deaf applicants as a group who
do not meet that requirement cannot drive package cars
safely. Unless UPS can establish a business necessity support-
ing such a blanket requirement, either by validating the appli-
cation of the DOT standard to deaf drivers or by adopting
some other validated standard for such drivers, it must allow
hearing impaired applicants to take the same initial driving
test, benefit from the same training program, and be subject
to the same final test as all other applicants, all with reason-
able accommodations if necessary.

   This approach in no way compromises the safety of UPS’s
driving force, as there are other stages, after applicants are
deemed qualified to commence training, at which drivers,
including deaf drivers who cannot safely drive package
trucks, may be weeded out. If the final test, for example,
shows that a deaf applicant is fully capable of driving safely,
regardless of the extent of his hearing impairment, he should
not be disqualified from employment. If, however, it reveals
that an applicant’s hearing impairment results in an inability
to avoid accidents to the same extent as drivers without hear-
ing impairments, he should be deemed to have failed the test.
The key, accordingly, is to design a training and testing pro-
gram that will eliminate all applicants who pose a safety haz-
ard regardless of whether the cause is hearing impairment,
inadequate vision, lack of judgment, slow reflexes, lack of
intelligence, or some disability other than a hearing impair-
ment.

   In this case, should the plaintiffs prevail and be allowed to
undergo the training program, UPS would be free to design a
test to be administered following its completion. By doing so,
it would test the ability of all potential employees, including
those who are hearing-impaired, to drive in a safe manner.
Oloyede and Habib would be allowed, if they pass the initial
driving test, to enroll in the training program and take the
final test upon its completion. Those who fail the testing and
training program for reasons related to their hearing impair-
                   BATES v. UNITED PARCEL SERVICE                   16929
ment, would, of course, be entitled to challenge it on the
ground that it did not properly measure whether such employ-
ees could perform the essential functions of the position. But,
absent such a challenge, and absent UPS proof of the DOT
standard or some other hearing impairment standard as a busi-
ness necessity, plaintiffs and other deaf drivers would demon-
strate that they are safe drivers in the same manner as all other
employees who desire to be package car drivers.

   As I read the district court’s opinion, it is consistent with
this basic approach. I would not, therefore, vacate the district
court’s holding on the “qualified individual” point.4

                                    2.

   The majority opinion holds, instead, that the district court
erred by not specifically examining whether Oloyede and
Habib are now capable of driving a package car safely, rather
than just whether they can drive safely enough to be eligible
for UPS’s package car driver assessment program. Maj. Op.
at 16911. Still, the majority opinion may not require signifi-
cantly more proof of Oloyede and Habib than they have
already adduced, except in one respect.

   UPS does not decide whether participants in its training
program can drive a package car safely enough to meet UPS’s
risk standards until the end of the program. Instead, it uses the
entry requirements and the initial phases of the training
program— most notably, a driving test — to decide whether
applicants are, at a first cut, likely to be able to perform that
essential job function and so should be allowed to continue
training for the job. Surely, Oloyede and Habib, who have
  4
    The majority takes the same course while analyzing whether Oloyede
is a “qualified individual” under California’s Fair Employment and Hous-
ing Act (FEHA). Maj. Op. at 16920-23. I therefore also do not concur with
that section of the opinion, for the same reasons given here with regard to
the ADA.
16930           BATES v. UNITED PARCEL SERVICE
never driven package cars, are not required to show that they
are more able to perform the essential job function of ulti-
mately driving a package car safely than any other similarly
inexperienced UPS employee who successfully passes the ini-
tial screening for the training program. Instead, they must
simply be as qualified as hearing employees must be at that
initial stage. The majority’s description of its required eviden-
tiary showing suggests as much, as it would include meeting
UPS’s entrance requirements and tests, including “having a
clean driving record,” and “passing the driving test,” not
more. Id.

   So, on remand, the district court may approach the quali-
fied individual inquiry under the majority opinion by deciding
whether the plaintiffs can show that they are likely to be able
to drive package cars as safely as other training program
entrants. The district court, on remand, may rely upon the evi-
dence already provided by Oloyede and Habib, or on any
other evidence they may introduce. Also, the district court
may order discovery on the UPS driving test given to program
entrants to allow Oloyede or Habib (or some other class repre-
sentative) to reconstruct and then take the same test. Members
of the class who meet all valid requirements and can pass that
test, with or without reasonable accommodations, would then
be as qualified to be package car drivers as other employees
entering the training program, and will meet their burden of
proof in this litigation.

   To require the plaintiffs to show any more to meet their
burden of proof would be to suppose that UPS’s training pro-
gram is a useless formality in no way essential to teaching
strategies and skills necessary to drive package cars safely.
UPS obviously does not believe that, and neither should we.
As deaf potential drivers have not had the opportunity to learn
those skills and strategies, they cannot fairly be measured for
safety against drivers who have. And, there is no way poten-
tial deaf drivers can reproduce and prove that they can pass
a several-week program supervised by experienced UPS train-
                BATES v. UNITED PARCEL SERVICE             16931
ers. So, as far as I can tell, deaf drivers should be able to show
they can drive a package car safely and so are “qualified per-
sons with a disability,” as the majority requires, simply by
passing a driving test equivalent to the one UPS requires to
enter its package car driver training program.

                               II.

   The majority opinion is also somewhat unclear on how the
district court should review the evidence supporting UPS’s
business necessity defense of the DOT hearing standard. The
majority remands on this question, directing the district court
to give “some consideration” to the DOT’s use of the standard
for larger vehicles as evidence for business necessity. Maj.
Op. at 16920.

   It appears to me that the district court has largely already
done so. It devoted several pages of careful analysis to
explaining the empirical and statistical deficiencies inherent
in extending the DOT hearing standard beyond the area in
which it now applies. It examined the studies supporting such
an extension, noting that the data supporting their conclusions
is “extremely dated,” that the studies used different defini-
tions and methodologies and so are not easily comparable,
and that the studies do not, themselves, tie the DOT hearing
standard to particular risk levels.

   Nor do I think that Morton v. UPS, 272 F.3d 1249, 1264-65
(9th Cir. 2005) directed the district court simply to disregard
the evidentiary weight of the DOT hearing standard, as the
majority suggests. Morton held that the mere existence of the
standard “cannot shoulder UPS’s statutory burden because the
standard itself does not cover vehicles below its weight
threshold.” Id. at 1264. Instead, Morton directed the district
court to analyze the data supporting extending the DOT stan-
dard to non-DOT vehicles. Id. The district court in this case
did exactly that. Its analysis led it to conclude that the exten-
sion of the DOT hearing standard was not supportable under
16932          BATES v. UNITED PARCEL SERVICE
the version of the business necessity defense set forth in Mor-
ton.

   In any event, the majority does not disapprove of the dis-
trict court’s factual findings on this point, and instead only
remands to the district court for it to consider the question
under the business necessity framework that the majority
opinion today enunciates. That directive is perfectly proper,
because it is possible — although, I suggest, not probable —
that the analysis will come out differently under the business
necessity standard as we enunciate it today. But nothing in the
majority opinion prevents the district court from examining in
that context the same methodological and empirical flaws it
previously discussed.

   Those flaws may well be significant under today’s stan-
dard. As the majority demonstrates, “business necessity” is
not an easy hurdle for an employer to surmount, particularly
when using discriminatory employment tests or qualification
standards. As we have held in the Title VII context, “[a]s a
general principle, the greater the test’s adverse impact [on
protected individuals], the higher the correlation [between the
qualification standard and the essential functions of the job]
which will be required.” Clady v. County of Los Angeles, 770
F.2d 1421, 1432 (9th Cir. 1985). Here, UPS’s use of the DOT
hearing standard excludes, if not 100% of deaf individuals (as
a few may pass), then at least the vast majority of such indi-
viduals. Under our law, such a facially-discriminatory qualifi-
cation standard must be well-justified indeed. The district
court’s initial analysis demonstrates the thinness of the data
supporting UPS’s use of the DOT hearing standard. On
remand, the district court will have to decide whether the
business necessity framework, as described in the majority
opinion, can tolerate such serious impacts justified with such
scanty data.

  Only if the district court decides that the DOT hearing stan-
dard is supported by business necessity could UPS use the
                BATES v. UNITED PARCEL SERVICE            16933
hearing standard to exclude deaf individuals as a group. Any
other result would leave in place the barriers, based in group
stereotypes rather than in thoughtful individual consideration,
that the ADA seeks to root out of American society.

                       *   *   *   *   *

   With these comments, I concur in Parts I, II, III(A)-(C)(1),
III(D), III(E), IV(B), and V of the majority opinion, and in the
judgment.
