Pre-Hire Inquiries and Medical Exams: Don’t Do What This Employer Did

By Eric B. Meyer

When the EEOC accuses your company of engaging in a “pattern or practice” of discrimination, it’s gonna be a tough year.

In EEOC v. Celadon Trucking Services, Inc., the EEOC accused Celadon Trucking of violating the Americans with Disabilities Act, by engaging in a “pattern or practice” of discrimination when it required job applicants for long-haul driver positions to answer three “medical review” questions before receiving an offer of employment.

Generally, an employer cannot “conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.” The exception: The employer first extends a conditional offer of employment.

ADA protections for medical examinations are broad

Here, the broad “medical review” questions fit the general rule. However, the company argued that the ADA only protects qualified individuals; i.e., those who can perform the essential functions of the job with or without reasonable accommodation. And because U.S. Department of Transportation (DOT) regulations require that a long-haul truck driver receive a medical examination and certification before he or she may perform the job, an applicant that is not medically eligible to receive DOT-approved certification is not otherwise qualified under the ADA.

Yes, but the ADA section on medical exams for job applicants, doesn’t mention qualified individuals or discrimination. It’s broader. So, the court 86ed this argument.

No “injury in fact?” No problem

But the employer wasn’t done yet. It argued that, even if job applicants are covered, none of the class members suffered an “injury-in-fact” as a result of the allegedly unlawful inquiries and examinations.

While it’s true that, ordinarily, a plaintiff suing for an unlawful ADA medical exam would have to show some injury, the EEOC is special. “The EEOC’s standing to bring a suit challenging a violation of the ADA is not derivative of the class members’ personal claims; it stems directly from the statute, and the EEOC’s own statutory enforcement authority.”

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So, the EEOC’s lawsuit could proceed.

The medical exams were too broad; not “job-related”

Finally, the company argued that the medical exams directly related to the applicants’ ability to secure Department of Transportation medical certifications as well as their ability to safely drive Celadon trucks. Indeed, job-relatedness is one of those exceptions I noted above.

Buuuuuuuut, before going any further, this exception is narrowly construed. And the court concluded that,

Celadon’s application inquiry did not ‘specifically delineate’” the physical defects about which it was seeking information; rather, it required an applicant to list all medical issues and allmedications.” Plus, Celadon could not adequately explain “how subjecting applicants to medical examinations before they receive a conditional offer is a function of business necessity.”

EEOC wins. And, yesterday, it announced a $200,000 settlement with Celadon.

Employer takeaways

  1. Avoid asking questions that are likely to reveal the existence of a disability before making a job offer.
  2. Generally, any medical examinations should take place after a conditional offer of employment is extended, and only if consistent with business necessity.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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