9th Circuit Addresses Employer Business Necessity Defense

The Ninth Circuit Court of Appeals reconsidered its prior ruling in Bates v. UPS, 04-17295. In its opinion enbanc, the court changed its analysis of an employer's use of the business necessity defense in Americans' With Disabilities Act (ADA) cases. Ultimately, it appears to have broadened the use of this defense by employers, but only slightly. In addition, the court clarified its analysis under the "qualified individual" element of the ADA. As a result, employers will now bear the burden to establish that an employee is not qualified because of safety or business necessity reasons. There had been some movement in the lower courts to boot strap that defense into the plaintiffs case-in-chief, which resulted in increasing the burden on Plaintiffs.