Two recent victories for the Equal Employment Opportunity
Commission should remind employers that rejecting a job applicant over a
medical condition, even when the condition appears directly related to job
performance, can expose the employer to serious legal consequences under the
Americans with Disabilities Act.
On April 15, the Northern District of Illinois approved an
$80,000 settlement in an EEOC lawsuit claiming an employer violated the ADA
when it reversed course on its decision to hire an applicant after learning of
his prostate cancer diagnosis. Two days later, the Middle District of Florida
granted summary judgment for the EEOC on its claim that an employer’s
revocation of an applicant’s job offer based on the results of a medical
examination revealing prior back surgery violated the ADA’s “regarded as”
disabled provision. Together these cases demonstrate that, whether the employer
is irresponsibly ignorant of the ADA’s requirements concerning medical criteria
in hiring decisions or contracts with an outside company in an effort to comply
with them, the ADA’s extensive regulations governing medical testing and
screening, along with the EEOC’s interpretative guidance, add unique challenges
to the hiring process.
In EEOC v. Professional Freezing Services, LLC, the
applicant, Harvel, applied for a warehouse manager position and claimed the
company was moving forward with his application until it learned he had been
diagnosed with prostate cancer. According to deposition testimony from one of
the company’s employees, the company’s owner made derogatory remarks about
Harvel and his condition, stating that he could not hire Harvel because he had
cancer and “in a best-case scenario, would end up in diapers.” While the case
settled before these facts were proven, there is no question the allegations,
if true, support an ADA violation. Thus, even though the employer apparently
did not perform the type of medical screening and testing of applicants that
would subject it to the ADA’s rigorous anti-discrimination standards, the
owner’s ignorance of the law resulted in the same type of EEOC scrutiny and
unwelcome litigation that a poorly administered screening and testing program
might have caused.
In EEOC v. American Tool & Mold, Inc., the applicant,
Matanic, received a job offer from American Tool & Mold, Inc. and began
working for the company as a process engineer. Matanic’s offer required him to
undergo a medical examination with Lakeside Occupational Medical Clinic, a
company that provided pre-employment medical screening services on behalf of
American Tool, to determine his ability to perform the essential functions of
the position. When Matanic’s examination results revealed that he had undergone
back surgery six years earlier and he was unable to provide documentation from
the surgical team stating that he had no permanent restrictions, Lakeside
deemed him “not fit for duty” and American Tool terminated his employment.
Matanic filed an EEOC charge and the agency later sued American Tool.
Ruling on the EEOC’s motion for summary judgment, the court
acknowledged that the ADA permits conditional offers of employment pending the
results of medical examinations, but stressed that examination results may only
be used in accordance with ADA guidelines. The court determined that once
American Tool became aware of Matanic’s surgery it “regarded Matanic as
disabled, that is unfit to perform the job until and unless he could prove
otherwise.”
Moreover, American Tool did not comply with ADA regulations
requiring an “individualized assessment” of Matanic’s ability to perform the
“essential functions” of the job before using the examination results as a
basis for withdrawing its offer. Because American Tool could not show its
requirement that Matanic obtain a release from his surgical team was “job
related” and consistent with a “business necessity” as required under federal
regulations, the court determined that the company’s decision to revoke his job
offer constituted unlawful discrimination in violation of the ADA. In the
absence of an individualized assessment, the court reasoned that American Tool
“cannot rely on ‘myths and fears’ regarding whether a back surgery performed
years earlier might ‘place ATM at risk of potential liability.”
While the employer in American Tool & Mold certainly
exercised more measured judgment than the employer in Professional Freezing
Services, the former case shows that simply having an official policy in place
for medically evaluating job applicants does not establish a safe harbor from
EEOC challenges. Although American Tool maintained throughout the litigation
that it merely sought to provide a safe working environment and that it acted
responsibly by obtaining an independent medical expert to determine whether
applicants were fit for duty, the company’s actions were plainly inconsistent
with a close reading of the ADA regulations.
The ADA’s requirements governing applicant medical screening
are highly specific and reliance on a physician’s conclusion that an individual
is not qualified to perform a position, even in good faith, will not insulate
an employer who revokes a conditional job offer if all of the ADA’s guidelines
have not been followed. When instituting medical examination and screening
procedures, retaining sophisticated counsel with experience applying the ADA as
amended and the federal regulations and EEOC enforcement guidance that define
its most crucial requirements is often far less costly than responding to the
violations that are otherwise likely to occur.
Source Employee
Benefit News
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