• January 23, 2019

Charlie Chaplin in Modern Times

The recent denial of summary judgment sought by United Parcel Service (UPS) in a case brought on behalf of Mr. Jeffrey Pagenkopf is interesting on many levels.

In no particular order, we first note that the Court’s memorandum sets out the means by which UPS selects drivers and trains them. The process is intensive and gives confidence that UPS drivers appear to go through exhaustive training.

Second, all of this training and Mr. Pagenkopf’s claims that he can do the job come at a fascinating moment of technological development with self-driving vehicles buzzing towards us on the near horizon and, simultaneously, the ever-increasing development of human-assistive technologies to enable people with disabilities to overcome overcome the limits of those disabilities with the help of technology.

In short, we are enabling more and more people to be more able to do more jobs while, at the same time, we are designing machines and systems so there will be far fewer jobs for people. (Enter: Andrew Yang for President.)

Third, we note that the issue of whether a deaf UPS driver can drive safely seems to be uncontested. He can. The issue is how a deaf driver might deal with intercoms or other foreseeable interactions that present an obstacle to someone who cannot hear.

Sr. U.S. District Court Judge Donovan W. Frank (D. Minn.) reasoned:

Pagenkopf proposed the following accommodations to allow him to communicate two-way with customers via intercom: voice-to-text/text-to-voice apps such as Dragon and iPhone Notes, pre-recordings, VRS to place a call to customers [Video Relay Service (“VRS”), a phone service for a deaf person to call a hearing person, or vice versa, through an interpreter], VRI to interpret directly from the intercom [Video Relay Interpreting (‘VRI’)], assistance from building residents to open the door for him, and leaving a UPS note for a future delivery. None of these proposed accommodations is unreasonable.

UPS apparently takes the position that there are no new technologies that would allow Pagenkopf to fulfill the
position’s essential functions but Judge Frank found that this was a question for a jury based on evidence.

Fourth and finally, we note that Mr. Pagenkopf is represented by Ms. Heather Gilbert who appears to have a fascinating niche in “deafness law.” What an extraordinarily focused area and we like to think that this blog post will help those who need Ms. Gilbert to find her.

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