Hope everyone had a great Fourth of July! My daughter and I got to enjoy some fireworks. They do a nice job with the fireworks here.
Today’s case is a long one. In the typical side-by-side version that we all remember from law school, the case ran 30 pages. Nevertheless, there are lots of goodies in this case and so here goes. The case is EEOC v. Celadon Trucking Services, 2015 U.S. Dist. LEXIS 84639 (S.D. Ind. June 30, 2015). As is true with my blog entries, the blog entry is divided into several categories: facts; issues; holdings; court’s reasoning (broken down by issues); and takeaways. The reader is free to concentrate on any or all of the categories.
The defendant is an Indiana based interstate motor carrier company whose drivers operate throughout the United States, Mexico, and Canada. Since they are an interstate carrier, they are subject to various Department of Transportation regulations, including those prescribing health and safety standards for drivers. Among those requirements are that all drivers pass Department of Transportation sanctioned medical examinations and otherwise possess certain minimum medical qualifications. Starting in 2008 and continuing at least through 2011, the process of wanting to work for the defendant began with an application form that asked the following questions:
1. Have you ever been injured, hospitalized, had surgery, been treated by a doctor on an outpatient basis, currently being treated by a doctor, or are you currently on any medications?
2. Have you ever been diagnosed with sleep apnea? If yes, you will need to obtain a sleep apnea form and then be released by the medical department prior to attending orientation.
3. Have you ever had a heart attack, heart bypass surgery, or have had angioplasty (balloon) or stent placed? If yes, you will need to have a release from your physician and be cleared by the medical department prior to attending orientation.
Applicants answering yes to any of these questions and disclosing medical issues were provided with a medical release form from the defendant and were instructed to return completed medical releases directly to the applicant’s assigned recruiter. By this point in the process, no applicant had received job offers. After this hurdle was cleared and the defendant employed recruiter performed background checks and evaluated the applicant’s basic qualifications, those people were invited to attend the next step in the process, a driver orientation program. Until at least 2010 as part of an orientation check in, recruiter called prospective drivers before their arrival and went over the responses to the application form, again asking them the three questions about their medical history and prompting them to obtain release forms if necessary. Even though it was called orientation, attendees at this orientation program had not received an offer of employment, even a conditional one. In fact, a form was signed making it clear that there was no employment relationship at the orientation. The orientation lasted 3 to 4 days. On the first day, applicants underwent physical examinations to ensure that they met Department of Transportation mandated driver health standards. These exams were conducted by staff from a third party, who issued applicants a Department of Transportation medical certificate upon passing the medical examination. The defendant required all applicants for driver position to pass a Department of Transportation physical and receive a certification from the third party in order to receive a job offer.
Anybody who has been following my blog over the years, knows that this kind of system would raise all kinds of red flags. Not surprisingly, the EEOC was alerted and they brought suit for two different types of classes of people. In the first, a group of applicants who never received certification that they had passed the required Department of Transportation physical and therefore never received employment offers. The second group of people were people who were refused employment by the defendant after the third party responsible for doing the physical exams did not certify them as having passed the Department of Transportation physical exam.
1. Were the seven exhibits that the EEOC relied on in its motion properly authenticated?
2. Did the three questions violate the ADA’s prohibition on preemployment disability-related inquiries?
3. Did the medical exams done prior to employment or even a conditional job offer violate the ADA’s prohibition on pre-employment medical exams?
4. For a person to protest a pre-employment disability -related inquiry or a pre-employment medical exam, must they need to be first qualified?
5. When the EEOC brings suit on its own behalf, must it show that the aggrieved individuals suffered an injury in fact in order for there to be standing?
6. Does the doctrine of judicial estoppel apply to the EEOC where some of the aggrieved parties did not disclose their claim in bankruptcy?
7. With respect to the failure to hire claims, the second group of people, must the EEOC has to show that those people were qualified?
8. With respect to the failure to hire claims, did the EEOC furnish sufficient evidence of pretext using the direct evidence approach?
9. Are the failure to hire claims precluded by the fact that the applicant did not exhaust a Department of Transportation process for contesting medical certifications?
1. Six of the seven documents were properly authenticated.
2. Yes but some of the questions do fall within the pre-employment medical inquiry safe harbor.
1. With respect to the seven documents, four of them were produced by the defendant thereby implicitly authenticating them. Two others were self authenticating because they contained the seal of the EEOC and were signed by the agency’s district director. One of them was thrown out because it was not something that could be authenticated.
1. With respect to the first group of people the EEOC was acting on behalf of, the allegations were a pattern or practice of discrimination claim. As such, all the EEOC had to prove was that a policy existed for a prima facie case to be established.
2. It was not disputed that the defendant made medical inquiries of applicants and required them to submit to physical exams before they were extended even conditional offers of employment.
3. The types of questions asked by the defendant appeared to be the type of open-ended inquiries Congress sought to restrict by enacting the pre-employment medical exams and pre-employment disability -related inquiry provisions of the ADA. The purpose of which was to ensure that a prospective employee’s hidden disability stayed hidden at the pre-hire stage so as to prevent employers from using the disclose the information to screen out applicants whose hiring would entail providing an accommodation. The EEOC enforcement guidance quite clearly states as such.
4. The ADA does contain a provision that a covered entity may make pre-employment inquiries into the ability of an applicant to perform job related functions. That provision allows a company to make pre-employment inquiries into the ability of an applicant to perform job related functions, and/or may ask an applicant to describe or demonstrate how with or without reasonable accommodation the applicant will be able to perform the job related functions. This exception is a narrow exception.
5. Since an essential function of the job means meeting Department of Transportation requirements, the question that went to sleep apnea and heart conditions were within the job-related safe harbor, but the first question was completely overbroad even when the Department of Transportation exacting physical requirements are considered, and therefore, that question does not receive any protection from the safe harbor.
6. A similar issue exists with respect to the defendant’s medical release policy. Some of them, such as those pertaining to brain or heart surgery, concussion, antidepressant prescriptions, and any history of seizures or neurological conditions at least have a relationship to the concerns expressed in the Department of Transportation regulations. However, the mandate for medical releases related to all surgery within the last year and all orthopedic surgeries within the last five years has no relation to any specific Department of Transportation requirement. Therefore, the medical release practice with respect to surgery and orthopedic surgeries did not fall within the safe harbor either.
1. §102(d) of the ADA prohibits pre-offer medical examinations entirely and does not contain within it a safe harbor.
2. The defendant failed to explain how subjecting an applicant to a medical examination before receiving a conditional job offer is a function of business necessity.
3. Case law suggesting to the contrary is simply not right. Further, other courts have found a prohibition on pre-hire examinations applicable even where the examinations are required pursuant to a Department of Transportation regulation.
4. EEOC guidance makes clear that the provisions dealing with pre-employment disability -related inquiries and pre-employment medical exams does not gut Department of Transportation regulations, rather they just channel them into the post offer pre-employment phase of the hiring process. In fact, the ADA does recognize that employers will often need to conduct medical examination to determine if an applicant can perform certain jobs effectively and safely. The ADA requires only that such examination be conducted as a separate, second step of the examination process, after an individual has met all other job prerequisites.
1. With respect to whether a person must be a qualified person to bring such a claim, the court wasn’t buying it because the statute specifically says that employers may not require any job applicants to submit a medical inquiry or examination prior to extending at least a conditional offer of employment. The key here being the term, “job applicants.” Job applicant is of course a term with a completely different meaning than qualified individual with a disability, one that is broader than a qualified individual. It is clear, that the statute is using job applicant and qualified individual with a disability to mean different concepts.
2. A statute needs to be construed so that its effect is given to all provision so that no part of the statute becomes inoperative or superfluous,void or insignificant.
1. Since the EEOC is bringing this claim on its own behalf, the injury in fact to the EEOC, for it to have standing, is a violation of the federal statute itself. That is the case here as a violation of the pre-employment disability -related inquiry and unlawful medical examination provisions occurs as soon as an employer’s conduct goes beyond those bounds. Further, since the injury in fact occurs the minute a violation of the federal statute occurs, it doesn’t matter what damages for the individual class members might be available.
1. Because the EEOC is bringing the suit in its own behalf, the typical rule of judicial estoppel with respect to claims not being mentioned in a bankruptcy filing being able to be acted upon later, simply doesn’t apply since it was not the EEOC that was a part of the bankruptcy proceeding.
1. Once a pattern or practice claim is not involved, the EEOC then must prove the elements of the failure to hire claim as to each individual for whom it seeks relief. That is, since the defendant cannot employ drivers who had not produced a copy of a doctor’s certificate indicating they are physically qualified for the position under Department of Transportation safety regulation, the EEOC must show that the particular individuals (the second class), met the requirements imposed by the Department of Transportation regulations before they could demonstrate that those individuals were qualified job applicants (in other words, the Department of Transportation certification was one of the qualifications for the job).
2. Since it would frustrate the purpose of the statute to allow an employer to subvert the independent medical certification process and then turn around and point to a claimant’s lack of certification as a defense to a discrimination claim, whether such a person meet the qualification for being an interstate truck driver is a matter of whether they were certified by the Department of Transportation or able to obtain Department of Transportation certification.
3. After doing the analysis in paragraph 1 and 2 of this section, four of the six claimants claims were thrown out, but two remained.
1. The EEOC elected to proceed under the direct method of proving discrimination, perhaps because the EEOC never demonstrated that the truck driver positions for which the claimant were rejected were filled by nondisabled applicants (it is of course debatable whether comparables in the ADA world even must be shown as this blog entry makes clear).
2. For the direct evidence approach to work, it is sufficient for a convincing mosaic of circumstantial evidence to be present and it is not necessary to show that each individual act was motivated by discriminatory animus.
3. Plenty of evidence existed of coordination between the defendant and the third party provider doing the physical exams to suggest a question of fact that denial of employment based upon the exam not being finished was nothing more than a pretext.
1. While it is true there is a process for contesting Department of Transportation certifications, that process only applies where there are multiple certifications involved. In this situation, the applicant’s were never given an opportunity to get certified in the first place. Therefore, the exhaustion requirement does not apply.
1. There are different kinds of clients out there. First, there are clients that just want to do what the law allows. Second, there are clients that are very serious about preventive law. That is, preventing problem from happening in the future even if that means going beyond what the law currently allows. There are other clients that want to push the envelope as to what the law allows. One simply can’t know whether Celadon is a client that wanted to push the envelope as to what the law allows or whether being faced with a drop dead liability situation, their lawyers came up with a very creative defense that the court bought in part. Clearly, Celadon’s approach was extraordinarily risky since by putting everything in writing and not following the pre-employment medical inquiry or disability -related inquiries scheme of the ADA, smoking guns were created for a pattern or practice claim on the part of the EEOC.
2. What is interesting to me is that prior to reading this case, it never occurred to me that the job-related safe harbor for pre-employment medical inquiries could actually extend to anything outside of the interview process. This case stands for the proposition that if the questions are related to a required regulation necessary for the job or to the job itself, such questions may be permissible even if they are in writing and are outside of the interview process as that term is commonly understood. Whether this is intended by the ADA is another story. One wonders if the EEOC might not test this theory on appeal, assuming there is one.
3. Performing a pre-employment medical exam is out. As the court mentions, switching the timing of the medical exam from pre-employment medical exam to post conditional job offer should not really upend the process at all. True, to withdraw the conditional job offer, the employer would have to show that the withdrawal was job-related, consistent with business necessity, and the person could not do the essential functions of the job with or without reasonable accommodations. That said, since very specific Department of Transportation regulations are involved here, it shouldn’t be that difficult to meet the standard should the medical exam post conditional job offer reveal a person that could not satisfy the Department of Transportation regulations.
4. With respect to EEOC standing, the EEOC has standing the minute a federal law they are responsible for implementing is violated.
5. Failure of the plaintiff to disclose the claim in bankruptcy is not going to stop the EEOC from pursuing that individual’s claim on the EEOC’s own behalf.
6. When it comes to Department of Transportation certification, a person with a disability will be qualified if they were either certified by the Department of Transportation or able to obtain Department of Transportation certification.
7. Direct evidence does not require discriminatory animus; a convincing mosaic of circumstantial evidence will work.