medical exams

Issues Relating to Medical Exams

September 25, 2018 by William Goren Leave a Comment

I did not blog last week, but I have a good excuse. Last week, was the Jewish day of atonement, Yom Kippur, and my daughter was also on fall break. For those who were celebrating last week, I hope your holidays went well. My daughter is now back in school, and so I am ready to get back to it.

Today’s blog entry is actually a two-for-one. We will explore the issue of medical exams both in terms of when they can be done and whether you can ask the employee to pay the cost of the medical exams. In our first case, EEOC v. BNSF Railway Company, we visit the question of whether a prospective employer can force a person with a disability to pay for the cost of a medical exam, in this case an MRI. In the second case, In the Matter of Paul Williams, Township of Lakewood, we visit the question of whether an anonymous tip is sufficient to require an employee to undergo a medical exam. As usual, the blog entry is divided into categories and they are facts, court’s reasoning, and takeaways for each case (a total of six different categories). Of course, the reader is free to read any or all of the categories.

BNSF Railway Company Facts

Holt received a conditional job offer from BNSF Railway Company for the position of Senior Patrol Officer contingent on his satisfactory completion of a post-offer medical review. During that medical review, he disclosed that he had injured his back four years before when he suffered a two-level spinal disc expiration. His primary care doctor, his chiropractor, and BNSF’s subcontractor doctor hired to examine him all determined that he had no current limitations with his back and found no need for follow-up testing. Even so, BNSF demanded that he submit an MRI of his back at his own cost, which would have run him $2500 since insurance would not cover it, or it would treat him as having declined the offer. Since he was in bankruptcy at the time, he did not obtain an MRI. As a result, BNSF revoked the job offer.

At the District Court level, the court held that the EEOC had shown that BNSF had regarded Holt as having a disability due to his back injury, that he was qualified for the job, and that BNSF had discriminated against him by requiring an MRI because it regarded him as having a disability. It also held that there wasn’t sufficient evidence to support any affirmative defense and granted partial summary judgment to the EEOC. The parties then reached an agreement on the amount to be awarded for damages, but BNSF did not waive its appellate rights and did in fact appeal. The District Court also entered a nationwide injunction against BNSF mandating that BNSF bear the cost of procuring any additional information it deemed necessary to complete a medical qualification evaluation. The injunction also required BNSF if they chose not to procure additional information, to complete the medical examination process using medical information it had in order to make a determination about whether the applicant was medically qualified for the job for which he received the conditional job offer.

BNSF Railway Company Court’s Reasoning

Proving a prima facie case a means showing that Holt: 1) had a disability as defined by the ADA; 2) was qualified for the position as defined by the ADA; and 3) that BNSF discriminated against Holt because of his disability.
42 U.S.C. §12102(1)(C) provides that a person is regarded as having a disability where he or she can establish that an adverse action occurred because of an actual or perceived physical or mental impairment regardless of whether or not the impairment limited or is perceived to limit a major life activity.
It is no longer necessary to show that the impairment had to be perceived to substantially limit a major life activity for discrimination to be actionable under the regarded as definition. So, all the EEOC had to show is that Holt had an impairment and not that the impairment was substantially limited.
A plaintiff must show that the employer knew that the employee had an actual impairment or perceived the employee to have an impairment and that the impairment was not transitory or minor.
While physical or mental impairment does not appear in the ADA itself, the EEOC at 29 C.F.R. §1630.2(h)(1) has defined an impairment as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems.
By requesting an MRI because of his back condition and conditioning the job offer on the completion of the MRI at Holt’s own cost, BNSF assumed that he had a back condition disqualifying him from the job unless he could disprove that proposition. Further, in rejecting his application because it lacked a recent MRI, BNSF treated him as it would an applicant whose medical exam had turned up a back impairment or disability. Therefore, BNSF chose to perceive him as having an impairment at the time it asked for the MRI and at the time it revoked the job offer.
Interpreting the ADA so that the definition of perceived impairment includes situations where an employer assumes an employee has an impairment or disability is consistent with the ADA as amended mandate that the definition of disability is construed broadly in favor of persons with disabilities.
Requiring an applicant pay for an MRI or lose his or her job offer because the applicant has a perceived back impairment is a condition of employment that imposes discriminatory conditions on a person with a perceived impairment. Further, considering the cost of MRIs, requiring an MRI as a condition of employment will for many individuals mean disqualifying them from participating in the process.
42 U.S.C. §12112(d)(3) does not authorize an employer to further burden a prospective employee with the cost of the testing regardless of how necessary the testing may be.
Where an employer requested an MRI at the applicant’s cost only from person with a perceived or actual impairment or disability, the employer is imposing an additional financial burden on a person with a disability because of that person’s disability. Such a requirement effectively precludes many applicants and directly contradicts the ADA’s aim to increase opportunities for persons with disabilities.
While there is nothing wrong with requiring additional follow-up testing, it is quite a different kettle of fish to require that the additional follow-up testing be done at the applicant’s expense. Imposing such a requirement limits the general protections of the ADA far beyond the necessary implications of what is allowed the ADA medical testing scheme.
The ADA already puts financial burdens on the employer by requiring them to pay for reasonable accommodations in the absence of an undue hardship. So, allowing employers to force people with disabilities or perceived impairments to pay for follow-up test subverts the goal of the ADA to ensure that those with disabilities have equality of opportunity and would force them to face costly barriers to employment.
If employers are not required to pay for the additional medical tests they require of people with disabilities, they very well might use that medical testing as a way to screen out applicant with disabilities. Putting the burden to pay on employers, helps to ensure that employer do not abuse their power to require testing at the post-offer, pre-employment stage.
While the EEOC did not show that BNSF acted with the discriminatory motive, it didn’t have to since it was clear that action was taken because of an impairment or perception of an impairment.
BNSF did not contest the issue of whether Holt was qualified under the ADA but even so, they decided to impose an MRI on him because of its perception that he had an underlying back problem.
With respect to the nationwide injunction, the court noted that there are customarily four factors a court considers when granting a nationwide injunction and they are: 1) whether plaintiff has suffered an irreparable injury; 2) whether remedies available at law are inadequate to compensate for that inquiry; 3) the balance of hardships; and 4) the public interest. While the District Court did not engage in this analysis, the Ninth Circuit holds that the factors were met in this particular case. Even so, the Ninth Circuit said that the injunction had to be vacated and remanded because the District Court failed to make adequate factual findings to support the scope of the injunction.

III

BNSF Takeaways

The ADA has a complicated scheme when it comes to medical exams and disability related inquiries, and we discussed that in this blog entry.
It is a bit mind-boggling to me that an employer would try to impose the costs of such exams on the applicant because doing so undoubtedly screens out people with disabilities and directly contravenes the whole idea behind the ADA in the first place.
There is a big debate going on right now about the utility of nationwide injunctions, and the four factor test provides a useful guideposts for trying to figure that out.
Interesting that the Ninth Circuit says that the final prong of a prima facie case is showing that the applicant was discriminated against, “because of his disability.” As we discussed in this blog entry, that is not what the ADA as amended requires.
Also interesting, is that the court with respect to regarded as says the ADA as amended provides for an exception from regarded as coverage if the impairment is transitory OR minor. However, 42 U.S.C. §12102(3)(B) requires that the impairment to be excluded must be transitory AND minor. Also, the court says that the plaintiff has the burden to show that the impairment is not transitory or minor.
While it is true that physical or mental impairment is not defined in the ADA itself, 29 C.F.R. §1630.2(h) does state what a physical or mental impairment is. It is a rather sparse definition, but in fleshing that out, it is helpful to remember how the ADA as amended defines major life activities.
Don’t forget about the screen out provisions of the ADA.

In the Matter of Paul Williams, Township of Lakewood Facts

The Township of Lakewood received an anonymous letter purportedly from a very concerned employee at Lakewood Public Works saying that Williams had mental issues and was a time bomb waiting to explode. For over eight months, the Township took no action concerning the letter. Then, the Township advised Williams that he would be sent for psychological fitness for duty examination and that if he did not attend such an examination he would face disciplinary action. Williams believe the examinations were not job-related and consistent with business necessity as required by the ADA at 42 U.S.C. §12112(d)(4)(A), and so he did not attend the evaluations. Accordingly, the Township sought to remove him from employment. It first went through the ALJ, which found in favor of Williams. They then appealed it to the Commission, which found in favor of the Township. Williams then appealed it into the court system.

In the Matter of Paul Williams, Township of Lakewood Court’s Reasoning

The ADA at 42 U.S.C. §12112(d)(4)(A) prohibits employers from requiring a medical exam or making inquiries on employee at the whether such employee is a person with a disability unless such examination or inquiry is shown to be job-related and consistent with business necessity. Citing to a case (Kroll), discussed in this blog entry, the court notes that there is very little discussion of this particular section in the ADA’s legislative history.
EEOC regulations make clear that an employer cannot require an employee to undergo medical test that do not serve a legitimate business purpose.
In an EEOC enforcement guidance, the EEOC says that a disability-related inquiry or medical examination of an employee may be job-related and consistent with business necessity when the employer has a reasonable belief, based upon objective evidence, that either: 1) an employee’s ability to perform essential job functions is impaired by a medical condition; or 2) an employee poses a direct threat due to a medical condition.
With respect to direct threat, which we have discussed many times in our blog, such as here, pursuant to 29 C.F.R. 1630.2(r), the term refers to a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodations.
An employer has to reasonably believe either through direct observation or through reliable information obtained from credible sources that the employee’s perceived medical condition is affecting his or her work performance or that the employee poses a direct threat before it can require a medical examination of a current employee.
EEOC enforcement guidelines says that an employer cannot act on information learned from another person to impose a medical exam unless the information learned is reliable and gives rise to a reasonable belief that the employee’s ability to perform essential job functions is impaired by a medical condition or poses a direct threat due to a medical condition. The guidance goes on to list five factors for an employer to consider for determining whether the information an employer receives is reliable and those factors are: 1) the relationship of the person providing the information; 2) the seriousness of the medical condition at issue; 3) the possible motivation of the person providing the information; 4) how the person learned of the information (whether directly from the employee whose medical condition is in question or from someone else); and 5) other evidence that the employer has bearing on the reliability of the information provided.
The employer’s belief requires an assessment of the employee and his or her job and cannot be based on general assumptions.
The Township did not meet its burden to demonstrate that requiring a physical exam was job-related and consistent with business necessity because the evidence was not there: 1) Williams work performance was satisfactory; 2) while Williams was confrontational at times, he didn’t behave differently than any other employee; 3) the Township failed to prove that Williams was a direct threat to either himself, others, or property; 4) prior employees of the Township were not required to undergo psychological evaluations, and the Township did not present any documentary evidence concerning any other disciplinary actions involving Williams; 5) the Township failed to take action for eight months; 6) the Township could have but did not solicit information from the Department of Public Works Director and any other supervisors concerning Williams job performance; and 7) the Township could have contacted the three union stewards specifically named in the letter for information about the alleged outbursts that Williams had but did not. Instead, they failed to investigate for over eight months, and then sought to rely on the letter as the sole basis for requiring the medical exam.

In the Matter of Paul William Township of Lakewood Takeaways

I am generally not a big fan of enforcement guidances. I think lawyers use them as a crutch. I am much happier sticking to statutory provisions and final implementing regulations that have gone through the rulemaking process. That said, as we discussed in this blog entry, enforcement guidances do prove useful at times. I believe using the enforcement guidance’s five factor test to figure out whether information you receive that might justify a medical exam makes a lot of sense and is good preventive law. I suppose whether it makes sense is a personal call, but hard to argue that the enforcement guidance five factor test is great preventive law.
The case cited to in the opinion, Kroll, we discussed here.
In many ways, the decision to require a medical exam of the current employee blends into whether a direct threat exists.
You can never go wrong with individual analysis.
If you receive information suggesting that a medical examination may be in order, in addition to the five factor test, be sure to look into it promptly and not wait eight months.
This court says transitory and minor is an affirmative defense, which is different from what the Ninth Circuit says in BNSF, our first case. So, when it comes to transitory and minor, check your jurisdiction on who has the burden of proof. Also, on the plaintiff side, be sure to monitor the defense so that a court is not convinced that it is transitory or minor rather than transitory and minor as stated in the ADA itself.

Job Related, Business Necessity, Direct Threat at the CEO level

January 24, 2018 by William Goren Leave a Comment

When it comes to blog entries, sometimes, I have a pipeline of cases to discuss. Sometimes, I have to search for a case to discuss. Sometimes, a news item comes up bearing discussing. As of now, cases in my pipeline include: standing under title III of the ADA; a tour de force on why Internet only places are places of public accommodations; and a case from the 11^th circuit exploring the issues of what is an actual disability and when a person is regarded as having a disability. I’ve had all of those cases in the pipeline for a bit, but I’m having trouble figuring out which one to blog on first.

Also, news keeps coming up. For example, recently Delta changed its service dogs and emotional support dog policy, and I am still digging into that (we might even have our first guest blogger for that one). That Delta change in policy has been a real hot topic of discussion on the animal law section of the Texas Bar Association listserv. In particular, the concern there is whether Delta change in policy goes beyond the requirements of the Air Carrier Access Act. In the news today, on the front page of the Wall Street Journal, there is an article entitled, “CSX to make CEO’s health its business.” Since I have been on a job-related and business necessity tear of late, I thought this article would win out for today’s blog entry. The article is divided into two categories: the WSJ article and thoughts. The blog entry is so short that you will probably want to read the whole thing. Nevertheless, it is possible to focus on either category or both.

WSJ Article

The article reports that CSX Corporation Board will adopt a policy requiring the railroad’s chief executive to submit to an annual physical exam that will be reviewed by the board. That annual physical exam will be conducted by a board selected physician. The rule comes about due to the issue CSX had with the last CEO. That CEO had a history of health issues and required the use of a portable oxygen tank to treat an unspecified medical condition. He declined the board’s request to review his medical records or submit to a physical as part of being named CEO. His hiring included an $84 million payment to cover compensation he left behind when he quit his job at another railroad to leave CSX. Hiring that CEO probably added $10 billion to the company’s market value. After taking medical leave of absence, that CEO died.

This isn’t the first time a company has had to deal with CEO health issues. For example, Apple never disclosed the specific reason for two extended medical leaves by co-founder Steve Jobs who died in 2011 after battling pancreatic cancer. United Continental holdings CEO was hospitalized and the company did not initially disclose that he had suffered a heart attack. He took a medical leave, had a transplant, and returned to work the following year. In 2015, the Goldman Sachs Group CEO informed his board of his lymphoma diagnosis shortly after receiving the news from his doctor. He continued to work through treatment and returned to work full-time the following year.

The article does note that requiring executives to share their physicals with the board could violate employment laws and at least required waving a right to privacy. I agree on the right to privacy needing to be waived, state laws and HIPPA for example. The article also notes that securities laws don’t explicitly require companies to disclose executive health problems, though companies must share material information that might affect investor decisions to buy or sell stock.

My Thoughts

The article doesn’t say if the physical is part of the CEO contract. Rather, it just says that it is a policy adopted by the board. I would be a lot more comfortable if the physical was part of the CEO contract for the reasons discussed in this blog entry. That particular blog entry discusses how in a collective bargaining context it isn’t always necessary to have some kind of cause before doing a post-employment medical exam as a result of the bargained for terms. It certainly helps if the job has a safety angle to it, which the CEO job does not.
CSX has a current CEO, but I could foresee problems if they required a physical exam prior to making a conditional job offer. See this blog entry.
With regards to a postemployment medical exam, an employer has the right to insist on one if it is job-related and consistent with business necessity (not sure why that wasn’t done with respect to its last CEO). Is that the case here? With respect to business necessity, is the exam vital to the business? The article points out that the health of a CEO can dramatically affect a company’s valuation. So, I have to vote yes. However, the harder question is whether the physical exam is no broader and no more intrusive than necessary.
With respect to job-related, from this blog entry, we learned that the Sixth Circuit has said that job-related involves the employer showing any of the following: the employee requested an accommodation; the employee’s ability to perform the essential functions of the job was impaired; or the employee posed a direct threat to himself or others.
With respect to the CEO of a major corporation, the business necessity piece seem to be fairly obvious. Just what is evaluated in the exam much less so. However, especially if you are in the Sixth Circuit, getting by job relatedness may not be so simple where the CEO is doing his or her job and nobody is aware of any problems. Remember, direct threat, which we discussed here and in numerous other blog entries, is a legal standard and a high one at that. The burden is also on the employer to establish direct threat.
Is it just the CEO that is going to have this requirement? What about other high level employees?
While an employee certainly has the right to waive its privacy, an employer cannot insist on waving the employee’s ADA rights.
If the physical does reveal problems, then the company is going to have to assess whether those problems that come up during the physical exam are job-related, consistent with business necessity, and whether there are any reasonable accommodations that can be put in place.
Bottom line: I would be a lot more comfortable if such a requirement was put in the contract with the CEO itself. I’m not sure a board policy will cut it in light of what we have discussed in this blog over time.

I really do have to move off this job-related and business necessity focus don’t I:-). Next week:-)

Preemployment Medical Inquiries v. Preemployment Medical Exams; the Rules Aren’t Exactly the Same and Other Goodies

July 7, 2015 by William Goren 1 Comment

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.

I
Facts

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.

II
Issues

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?

III
Holdings:

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.

3. Yes

4. No

5. No

6. No

7. Yes

8. Yes

9. No

IV
Court’s Reasoning

Issue 1

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.

Issue 2

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.

Issue 3

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.

Issue 4

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.

Issue 5

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.

Issue 6

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.

Issue 7

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.

Issue 8

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.

Issue 9

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.

V
Takeaways:

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.

medical exams

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