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Massage Envy Decided by 11th Circuit

September 16, 2019 by William Goren 1 Comment

Today’s blog entry will focus on the decision from the 11^th Circuit decided September 12, 2019, on the Massage Envy case we discussed here. In this decision, the 11^th Circuit affirmed the opinion of the lower court holding that regarded as does not apply to fear of a future disability. As mentioned in the original blog entry on this case, the lower courts are split on this question. I do look for a Circuit Court split in the future on the matters discussed in this blog entry. Since we have already talked about this case extensively, there isn’t a need to bother with the facts except as they are germane to the court’s reasoning. So, this blog entry is divided into categories of: court’s reasoning regarded as; court’s reasoning association discrimination; miscellaneous matters; and thoughts/takeaways. The reader is free to concentrate on any or all of the categories.

Court’s Reasoning Affirming the District Court That Regarded As Does Not Apply to Fear of Employee Catching Ebola on a Trip to Ghana

Employer’s fear that employee could catch Ebola was unfounded as there were no confirmed cases of Ebola in Ghana during the 2014 outbreak.
42 U.S.C. §12102(1) defines a disability as: 1) a physical or mental impairment that substantially limits one or more major life activities of such individual; 2) a record of such an impairment; or 3) being regarded as having such an impairment.
With respect to regarded as having such an impairment, 42 U.S.C. §12102(3)(A) that definition is satisfied if the individual establishes he or she had been subjected to an action prohibited under the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
Regarded as does not apply to impairments that are transitory and minor.
Time period for assessing the existence of disability for purpose of triggering ADA protection is the time of the alleged discriminatory act.
The court agrees with the defense that the employer perceived the employee as having the potential or possibility of becoming infected in the future when she traveled to Ghana. That is not the same thing as the employer perceiving the employee had Ebola.
The definition of disability and 42 U.S.C. §12102(1) provides that a disability is a present physical or mental impairment, a record of such an impairment, or being regarded as having such an impairment.
Many courts have said that the impairment in the actual disability prong is limited to impairments existing at the time of the adverse employment action and does not include impairments manifesting after the alleged discrimination. Therefore, it necessarily follows that impairment in the regarded as prong has the same meaning as impairment in the actual disability prong because terms appearing in several places in statutory text generally read the same way each time it appears.
42 U.S.C. §12102(1)(C) refers to “such an impairment,” which necessarily refers back to 42 U.S.C. §12102(1)(A).
So, in regarded as cases a plaintiff has to show the employer knew the employee had an actual impairment or perceived the employee to have such an impairment at the time of the adverse employment action. Further, that impairment must not be transitory and minor.
When 42 U.S.C. §12102(3)(A) is read most naturally, a person is regarded as a person with disability only if she is subject to termination because of an actual or perceived physical or mental impairment. That is, an employer does not fire or otherwise discriminate against an employee because of a perceived physical impairment unless the employer actually perceives the employee to have that impairment. So, 42 U.S.C. §12102(3)(A) does not extend to an employer’s belief that an employee might contract or develop an impairment in the future.
While it is absolutely true that the ADA has to be construed in favor of broad coverage of individuals, the court still concludes that the terms of the ADA protect anyone who experiences discrimination as a result of a current, past, or perceived disability and not a potential future disability.
The EEOC’s own interpretive guidance, a body of experience and informed judgment that the court may properly resort to for guidance, states that a predisposition to developing an illness or disease is not a physical impairment.
In the EEOC’s appendix to the regulations, the EEOC says that it is important to distinguish between conditions that are impairment and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. That same appendix says that characteristic predisposition to illness or disease did not constitute a physical impairment under the ADA. So, if a predisposition to developing a disease in the future is not a physical impairment, then the court simply didn’t see how the plaintiff’s heightened risk of developing the disease of Ebola in the future by visiting Ghana constitutes a physical impairment either.
While it is true that the phrase “being regarded as having such an impairment,” contains present tense verbs (present tense can include the future), the plain language of the ADA in the context of this provision indicates that being regarded as does not apply to the future.
The 11^th Circuit also wasn’t buying that regarded as should be read as being regarded as having an imminent impairment because that would be adding a word to the statute that doesn’t exist.
The statutory text of the ADA is such that the employer must perceive the employee as having a current existing impairment at the time of the alleged discrimination.

Court’s Reasoning Association Discrimination

The association discrimination provision is intended to protect qualified individuals from adverse job actions based on unfounded stereotypes and assumptions arising from the employee’s relationship with particular persons with disabilities.
A prima facie claim for association discrimination means showing: 1) plaintiff was subjected to an adverse employment action; 2) plaintiff was qualified for the job at that time; 3) plaintiff’s employer knew at that time that she had a relative or associate with a disability; and 4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision.
While the nature of the relationship in question does not have to be family (see 29 C.F.R. §1630.8), a plaintiff does have to show an association or relationship with a specific person with a disability or persons with a disability (see 42 U.S.C. §12112(b)(4).
Plaintiff’s claim fails because plaintiff did not plausibly allege that the employer knew the plaintiff had an association with a specific individual with a disability in Ghana when it terminated her employment.
Alleging plaintiff might come in the contact with certain unknown individuals by traveling in Ghana is too attenuated a connection for stating an association discrimination claim because that kind of claim requires both a known association and a known disability.
EEOC failed to plausibly allege a sufficient association or relationship with unknown individuals with Ebola. After all, plaintiff was not traveling to Ghana to assist with the Ebola epidemic. It isn’t good enough to allege that plaintiff might come into contact with those individuals by traveling in the country.
Generalize references to association with persons with disabilities or to advocacy for a group of persons with disabilities are not sufficient to state a claim for association discrimination under the ADA.
The EEOC did not cite to any case involving the association discrimination claim based upon the employer’s belief about an employee’s potential causal association with unknown people with disabilities.
An employer may fire an employee for good reason, a bad reason, a reason based on erroneous facts, or for no reason at all so long as its action is not for discriminatory reason contrary to federal law.

III

Miscellaneous Matters

The 11^th Circuit agrees that the lower court was justified in refusing to allow the EEOC to amend its complaint to add an interference claim because the plaintiff had no right granted or protected by the ADA to begin with;
The 11^th Circuit agreed with the plaintiff that the District Court erred in not allowing her to intervene in the lawsuit because plaintiff as a matter of right has the right to intervene in the lawsuit. Nevertheless, since plaintiff had no underlying ADA rights to begin with, denying the intervention was harmless error;
Judge Jordan concurred. He was of the opinion that the clear statutory language was such that the majority opinion got it right. However, he did write to state that the policy behind the ADA supported the plaintiff’s position. In particular, the ADA was enacted in part to eliminate the sort of stereotyping allowing employers to see their employees primarily as their disability. Also, citing to Shell, which was discussed in the original Massage Envy blog entry, Judge Jordan says the EEOC position that “regarded as,” encompasses a decision made by an employer based on a perception that an employee is going to suffer experience a disability in the future makes a lot of sense.
Judge Jordan would have also decided the question of whether the EEOC had to exhaust administrative remedies before filing suit. He also says that he would have decided in favor of the EEOC that the exhaustion of administrative remedies doctrine does not apply to the EEOC.

Thoughts/Takeaways

The contrary view to this decision was expressed by the court deciding Shell.
The 11^th Circuit has been very pro-person with a disability of late. So, one wonders whether a petition for rehearing en banc will not be sought. Appeal to the United States Supreme Court? With respect to the United States Supreme Court, it is true that United States Supreme Court is not friendly to people with disabilities with respect to employment matters. However, United States Supreme Court of late has been very interested in looking at the rights of people with disabilities broadly outside of the employment context, such as here and here, for example. Not at all clear to me even with the configuration of this court, how the Supreme Court might decide this.
The Shell case has several arguments that could be used to convince an en banc court that this panel didn’t get it right. These arguments appear below in ¶ ¶ 4-8 of this section. Keep in mind, the facts in Shell, dealing with obesity, were much more obvious that the employer perceived a disability than they are in Massage Envy. Also, the “voluntary,” conduct in Shell was much less of an issue there than it is in Massage Envy. So, Massage Envy certainly has an argument that Shell is distinguishable. I realize in the original blog entry that I didn’t see how the two cases could be distinguished, but upon further review, there is a possibility that they can be. After all, it is football season. So, we always have, “upon further review.”
The policy behind the ADA, as Judge Jordan mentioned, is such that regarding a person as having a future disability is protected by the ADA.
The ADA makes quite a point about individualized analysis needing to be done just about everywhere. That certainly wasn’t the case when Massage Envy terminated the plaintiff.
A distinction exists between being predisposed to illness generally v. being predisposed to developing a disability subject to the ADA.
The employer acted upon worst-case scenarios derived from precisely the sort of myths, fears, or stereotype the ADA was meant to guard against.
The 11^th Circuit ignores that the ADA prevents an employer from adopting policies, practices, and procedures that screen out people with disabilities.
If the 11^th Circuit decision holds, does that mean employers have free reign to terminate employees with genetic conditions that will manifest themselves later? Will the distinction in those kinds of cases be “voluntary,” conduct?
11^th Circuit cites to the EEOC’s appendix on more than one occasion. The appendix is essentially the EEOC interpreting its own regulations. As we know from our discussion in Kisor v. Wilkie, it is far from a certain conclusion that the EEOC’s interpretation of its own regulations will automatically get credited as the go to deciding factor.
I agree with the court that it doesn’t make a lot of sense to say regarded as must be read as regarding as having an imminent impairment.
The Circuit’s are splitting on what association discrimination is. The 11^th Circuit has a far broader notion of association discrimination than the Seventh and Second Circuits (see, here). As we discussed in this blog entry, in the Second and Seventh Circuits, association discrimination only applies under certain narrow factual situations. The 11^th Circuit decision doesn’t do that. Another Circuit court split that tees up for the Supreme Court.
It is not a foregone conclusion to me that the actual disability prong must dictate the same conclusion with respect to the regarded as prong when it comes to whether a future impairment is part of the regarded as definition. You could argue that the regarded as prong essentially functions as an adjective modifying the actual disability prong.
The 11^th Circuit uses “because of,” several times in its opinion. Causation under title I is “on the basis of,” as we have discussed many times before, such as here.

Egregious Fitness for Duty Policy Leads to Class Action Certification

February 14, 2019 by William Goren 4 Comments

Before getting started on our blog entry for the week, I want to let everyone know that next week my daughter’s school has a break, and we are off to Universal Orlando for the week. We are all big Harry Potter fans. So, with Monday being a holiday and my daughter being off with some appointments, I am not sure I will get a blog up on Monday. No way, I get a blog up the rest of the week. I will definitely be back blogging the week of the 25^th.

One of the things that we have talked about in our blog is the difficulty of class actions when it comes to persons with disabilities. It is, as we have discussed here, very difficult to pull off. I do see them with respect to deaf and hard of hearing access. I also see it with respect to the treatment of prisoners with disabilities, which we discussed here. Other than that, very difficult to pull off. Now comes a case from the District Court of Nebraska saying that a class action can proceed with respect to a particularly egregious fitness for duty policy of the Union Pacific Railroad Company. The case is Harris v. Union Pacific Railroad Company from the U.S. District Court in Nebraska decided on February 5, 2019. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning allowing class action to proceed; and takeaways. I have broken down the reasoning into specific compartments. Of course, the reader is free to focus on any or all of the categories.

Facts

Union Pacific has a companywide fitness for duty program. The policy, effective 2014, works like this. Employees in certain positions are required to disclose specific health conditions. That policy automatically precludes employees disclosing those conditions from employment. Those employees then have to have a fitness for duty evaluation, and according to plaintiffs, Union Pacific routinely ignored the medical opinions of outside doctors. The records are then sent to a doctor, a Dr. Holland, in Olympia, Washington and his support staff. The doctor and his staff do not do a physical evaluation, then he and his designees make all decisions regarding who is fit for duty.

The plaintiffs are all previous employees of Union Pacific. Many had worked for years and were allegedly qualified in performing their jobs with no problem. They were pulled from their jobs under this program, evaluated, and then excluded from their positions with Union Pacific even though, according to the plaintiffs, they had no trouble fulfilling the essential functions of the job. Plaintiff challenged Union Pacific’s policy of removing employees from the job based on an arbitrary and scientifically unsound 1% rule regarding the risk of sudden incapacitation. Dr. Holland, the physician making the decisions in Olympia Washington, admitted that Union Pacific applied a uniform threshold risk level by considering any condition with the risk for a sudden impact event of greater than 1% in the coming year to require restrictions from work. That is, non-acceptable risk meant an absolute current risk of sudden incapacitation greater than 1% annual recurrence rate in the coming year.

Plaintiffs brought a class action alleging: 1) disparate treatment; 2) disparate impact; and 3) unlawful medical inquiry in violation of 42 U.S.C. §12112(d)(4)(A). The proposed class encompassed, “individuals who were removed from service over their objection, and/or suffered another adverse employment action, during their employment with Union Pacific for reasons related to a fitness for duty evaluation at any time from 300 days before the earliest date that a named plaintiff filed an administrative charge of discrimination to the resolution of this action.

Court’s Reasoning Allowing the Class Action to Proceed

The four basic requirements of a class action under Rule 23(a) are: 1) numerosity; 2) commonality; 3) typicality; and 4) adequacy of representation. Further, one of the following §§ of Rule 23(b) must also be met: 1) a risk of inconsistent adjudication or impairment of interest for non-class members exists; 2) the defendant’s conduct apply generally to the whole class; or 3) questions of law or fact common to members of the class predominate in the class action is a superior method for adjudication. Finally, Rule 23 requires any certification of the class to have in its order the appointment of class counsel.

Numerosity

Regarding numerosity, no magic number proving numerosity exists, but courts have stated that a class of 40 works. Here, the plaintiffs have presented evidence of potentially 7000 class members. While Union Pacific disputes the exact number, it does not dispute that plaintiffs meet the numerosity requirement.

Commonality

Regarding commonality, commonality is satisfied when the legal question linking the class members is substantially related to the resolution of the litigation.
Commonality requirement imposes a very light burden on a plaintiff seeking to certify a class and is easily satisfied.
The key to commonality is focusing on the capacity of a classwide proceeding to generate common answers apt to drive the resolution of litigation. The similarities within the proposed class are what have the potential to impede the generation of common answers.
The court finds commonality exists for several reasons: 1) the fitness for duty policies and reportable health events are uniformly carried out nationwide by the same group of decision-makers, i.e. Dr. Holland and his team of doctors and nurses; 2) 75% of Union Pacific’s 40,000+ employees are considered working in these positions and therefore, are subject to reportable health events policy; 3) each employee has to undergo an evaluation; 4) medical records are obtained on each of those employees, and the employees are not physically examined by Dr. Holland or his team; 5) the doctor merely looks at the employee’s medical records, references materials for the suspected condition or diagnosis, and decides whether the employee poses a greater than 1% risk of sudden incapacitation within the next year; 6) where appropriate, work restrictions are implemented, and in most cases, those broad restrictions make it impossible for the employee to continue working; and 7) proof will be the same regarding systemic disability discrimination, operating procedures and policies, and the affirmative defenses (direct threat and business necessity).

Typicality

Regarding typicality, the court found the claims and defenses are typical of the class for a variety of reasons: 1) all complaints alleged discrimination; 2) all complaints involve the exact same policy; 3) most of the employees allegedly are either discharged or constructively discharged by the 1% rule; 3) the regulations and fitness for duty policies have led to dismissal or significant restrictions on the employees; 4) of the 7000 Union Pacific employees having to report a health event under the policy, it appears that at least 3145 of them were not cleared for work or were issued work restrictions; 5) for those with a “critical diagnosis,” those employees were not cleared for work or given very high levels of work restrictions; and 6) workers were often given long-term restrictions that lasted hundreds of days if not years.

Adequacy of Representation

Regarding the adequacy of representation, plaintiff’s interests do not diverge or are opposed to the rest of the class, and counsel would adequately represent the class members as they are experienced and competent to lead the case.

Rule 23(b)(3)

For class certification, plaintiffs also must prove one of the requirements of Rule 23(b). In this case, the rule involved is Rule 23(b)(3), which necessitates a finding by the court that questions of law or fact common to class member predominate over any questions affecting only individual members, and that a class action is superior to other available method for fairly and efficiently adjudicating the controversy.
With respect to predominance, common issues have to constitute a significant part of any individual cases. Another way to look at it is that where there is an essential factual link between all class members and the defendants for which the law provides a remedy, questions of law or fact common to the class exists.
The proposed class is sufficiently cohesive as it involves an alleged pattern of employee decision-making with respect to the class even more so than with respect to the individuals. Finally, the same evidence will be used to establish class wide proof.
In a footnote, the court noted that the plaintiffs identified their support for the pattern or practice liability, which included: 1) a uniform, written reportable health event policy; 2) uniform implementation of that policy by a small group of decision-makers guided by standardized policies and practices; 3) evidence that the policy is invalid because among other things it is based upon incorrect generalizations about the risk of sudden incapacitation posed by certain health condition, including a scientifically unsound 1% rule and inapplicable material governing commercial truck drivers; 4) internal documents showing that the company was aware of the discriminatory intent and outcomes of its policy; 5) numerous specific instances of discrimination suffered by class members; and 6) data showing a pattern of thousands of workers suffering adverse outcomes as a result of Union Pacific’s policy.
With respect to superiority, the question is whether the adjudication of common issues helps achieve judicial economy. The court found this satisfied because common question regarding the proposed class, including a pattern and practice of discrimination and the viability of Union Pacific’s affirmative defenses exist. Much of the case relies on common proof. So, to allow individual lawsuits would duplicate that proof over and over again.
In the Eighth Circuit, a class must be adequately defined and clearly ascertainable. That is the case here because the case involves a single, uniform reportable events policy. The Eighth Circuit has not joined the Third Circuit in requiring an additional requirement of administrative feasibility of the class. In any event, the administrative feasibility requirement doesn’t make sense when you have a pattern of discriminatory decision-making, i.e. a pattern or practice case.

Court’s Way Forward

With respect to how the case proceeds in the future, the court set up a two-part process. First, the parties litigate liability and injunctive relief in phase 1. Then, in phase 2, parties litigate damages and other remaining issues through individual hearings, or group hearings as appropriate, or by stipulations of the parties.

III

Takeaways

You have to figure that this case is going to settle. We have discussed direct threat many times, such as here, here, and here, and it’s hard for me to believe that such a policy could even remotely come close to meeting the direct threat standard. Also, we have discussed job-related and consistent with business necessity several times as well, such as here. Hard for me to believe that these exams would job-related and consistent with business necessity.
One wonders about how the policy came into being. Hard to believe that knowledgeable ADA counsel would not have spotted the issues with respect to how it screens out persons with disabilities (title I, II, and III all have provisions in them prohibiting policies and procedures that screen out persons with disabilities). It would be interesting to know if the policy was reviewed by in-house or outside legal counsel before implementation as that might create malpractice issues. It is also entirely possible that legal pointed out the difficulties and the client went ahead and did it anyway. That does happen. As mentioned above, the court in a footnote, said that the company was made aware of the discriminatory impact of the policy.
The policy is so draconian that in my opinion, the regarded as prong is also activated.
The ADA requires an individual analysis and an interactive process, both of which are missing in this case.
Interesting discussion about pattern or practice since it is the EEOC that brings such actions. You generally don’t think of a pattern or practice with regards to private litigants. That said, you certainly have screen out issues going on here, which as a de facto matter when combined with the policy amounts to something very similar.
Check your jurisdiction as to whether it adopts an additional administrative feasibility rule when it comes to class actions.
Ignoring relevant medical evidence is never a good idea.
Considering how hard it is to find labor nowadays, one wonders about the business sense of Union Pacific’s policy.
Many of the employees worked for years with no problems. So, if it ain’t broke, don’t fix it.
Commonality is not a difficult requirement to satisfy.
For the reasons discussed in this blog entry, I can’t imagine an appeal being successful.

Issues Relating to Medical Exams

September 25, 2018 by William Goren 1 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.

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