Blanket Policies Can Increase Your Risk of A Class Action Lawsuit

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Generally, employees have not been successful in trying to bring class actions under the Americans with Disabilities Act (ADA). The reason is that – unlike Title VII or the Age Discrimination in Employment Act – it's not enough for an employee to belong to a protected class. Under the nondiscrimination provisions of the ADA, an employee must be a "qualified individual with a disability." Determining whether the class members are all qualified generally forecloses treating them as a class.

On the other hand, the ADA's prohibition of pre-employment medical examinations, does not require that the employee or applicant be a qualified individual with a disability. Neither does the section of the law that requires that the results of such examinations be kept confidential. It requires only that the plaintiff be a job applicant or an employee. Thus, an employer that requires applicants to submit to medical inquiries, or to medical examinations that are not job related and consistent with business necessity, stands a greater chance that a court will allow a class action against it to proceed.

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