511 F.3d 974 (2007)

Eric BATES; Bert Enos; Babaranti Oloyede; Eric Bumbala; Edward Williams, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees,
v.
UNITED PARCEL SERVICE, INC., dba UPS, Defendant-Appellant.

No. 04-17295.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 20, 2007. Filed December 28, 2007.

*975 *976 *977 *978 *979 *980 *981 Mark A. Perry (argued), Gibson, Dunn & Crutcher, LLP, Washington, D.C., Christopher J. Martin, Gibson Dunn & Crutcher, LLP, Palo Alto, CA, Rachel S. Brass and Amanda M. Rose, Gibson, Dunn & Crutcher, LLP, San Francisco, CA, for the defendant-appellant.

Laurence W. Paradis (argued) and Kevin M. Knestrick, Disability Rights Advocates, Berkeley, CA, Todd M. Schneider and Guy B. Wallace, Schneider & Wallace, San Francisco, CA, 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, CA, for amici curiae American Association of People with Disabilities et al.

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

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

Robert Digges, Jr., American Trucking Associations, Inc., Alexandria, VA, J. Brett Busby and Jeffrey L. Oldham, Mayer, Brown, Rowe & Maw LLP, Houston, TX, for amicus curiae American Trucking Associations, Inc.

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.

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]

*982 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, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). Bates contends, however, that UPS may not lawfully 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 Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). In determining 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 traditional 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 discriminates against otherwise "qualified" persons with disabilities, 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 discriminatory 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 considered 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 decision. 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 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 highest 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 *983 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 better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5-1951.

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

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 vehicle 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 comparison, automobiles, which include passenger cars, sport utility vehicles, light trucks and mini-vans, 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 [certifying 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 *984 standard is lawful 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 proposed 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 operated 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 concluded 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 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 standard. 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 permanent 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 determination of liability. Smith v. Vulcan Iron Works, 165 U.S. 518, 525, 17 S.Ct. 407, 41 L.Ed. 810 (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, 102 S.Ct. 468, 70 L.Ed.2d 242 (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 liability 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 determinations as to both motions are inextricably *985 intertwined with 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 intertwined" with permanent injunction granting class-wide relief); Marathon Oil, 807 F.2d at 764-65 (reviewing summary judgment 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 standing 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 requirements are satisfied before proceeding to the merits. United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995); Casey v. Lewis, 4 F.3d 1516, 1524 (9th Cir.1993).

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 traceable" 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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Here, only liability and equitable relief were at issue in the district court, not damages. Thus, we consider only whether at least one named plaintiff satisfies the standing requirements for injunctive relief.

The standing formulation for a plaintiff seeking prospective 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 particularized" legal harm, Lujan, 504 U.S. at 560, 112 S.Ct. 2130, coupled with "a sufficient likelihood that he will again be wronged in a similar way." City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). As to the second inquiry, he must establish a "real and immediate threat of repeated injury." O'Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 38 L.Ed.2d 674 (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, 103 S.Ct. 1660. 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, 94 S.Ct. 669. 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 *986 to redress" their injuries) (quotation marks and citation omitted).

Although the district court did not make explicit findings on standing, it made detailed findings on relevant and analogous 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 findings regarding named plaintiff Barbaranti Oloyede, we conclude 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 individuals who failed or would fail the DOT hearing test. Oloyede 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.

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, 112 S.Ct. 2130. Second, the crux of this lawsuit is the challenge to UPS's written qualification standard, 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 immediate future." Armstrong, 275 F.3d at 861; see also Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir.2004).

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 Sacramento, 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 certification of the class in 2001, Oloyede accepted a position at UPS which, due to the terms of a collective bargaining agreement, 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 "qualified" applicant who would benefit from an injunction. This argument is a backhanded way of attacking Oloyede's standing 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, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (quoting Henry P. Monaghan, Constitutional 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, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003). The same tension exists with respect *987 to standing and mootness in class actions. Id.See also Jean Wegman Burns, Standing and Mootness 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 adequacy or standing [or mootness], it is clearly satisfied in this case." Gratz, 539 U.S. at 263, 123 S.Ct. 2411. See E. Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 406 n. 12, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977) (noting that it would be error for a district court to dismiss class allegations where it had already certified a class and "only later had it appeared that the named plaintiffs were not class members 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, 95 S.Ct. 553, 42 L.Ed.2d 532 (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, 95 S.Ct. 553. At the time of the district court judgment, plaintiff had not yet met the residency requirement. Id. at 398, 95 S.Ct. 553. By the time the case reached the Supreme Court, however, plaintiff had not only met the residency requirement but also obtained a divorce in another state. Id. at 398 & n. 7, 95 S.Ct. 553. 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 controversy, not only at the time of filing and at the time of class certification, but also when a court reviews the case — is satisfied by "a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot." Id. at 402, 95 S.Ct. 553. As one commentator 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, 96 S.Ct. 1251, 47 L.Ed.2d 444 (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, 96 S.Ct. 1251.

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 undermined the named plaintiffs' individual claims." 431 U.S. at 406 n. 12, 97 S.Ct. 1891.

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 court, Habib, who is completely deaf, has a valid driver's license and twenty-seven years of driving experience. The district court also *988 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 redress-ability 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

The hearing standard at issue here is a facially discriminatory 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 employees 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, 97 S.Ct. 1843.

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 decision on a proscribed basis (here, disability in the form of hearing 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 disparate treatment claims is unnecessary).

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, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); Costa v. Desert Palace, Inc., 299 F.3d 838, 855-56 (9th Cir.2002) (en banc), aff'd, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003).

B. APPLICABLE PROVISIONS OF THE ADA

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

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

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.

*989 A "qualified individual" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8) (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 position." 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 cannot perform a job's `essential functions' (even with a reasonable 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 functions, 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.

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 professional 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).

In a case in