EEOC alleges medical exams and questionnaires violate ADA, GINA

by McAfee & Taft
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The Americans with Disabilities Act (ADA) limits an employer’s ability to make disability-related inquiries or subject individuals to medical exams. No such inquiries or exams may be made until an offer of employment is made. Once a conditional offer of employment is made, an employer may make such inquiries or require such exams, provided it does so for all individuals within a job category. If the inquiries or exams screen out an individual because of his or her disability, the employer must demonstrate that the individual was rejected for a reason that is “job-related and consistent with business necessity.” Generally, the employer must show it had a reasonable belief, based on objective evidence, that an individual’s ability to perform the essential functions of a particular position would be impaired by a medical condition.

EEOC claims qualification standards, medical inquiries used to discriminate

The U.S. Equal Employment Opportunity Commission recently filed suit against a retailer alleging it violated the ADA by rescinding job offers extended to persons whose post-offer medical examinations revealed disabilities. The lawsuit alleges individuals were granted conditional offers of employment following an application and interview process. They were then subjected to medical examinations conducted by independent healthcare providers. These healthcare providers received instructions from the retailer about how to conduct the exams. They also received forms from the retailer to complete during those exams.

During post-offer exams, individuals had their vital signs checked. They were subjected to vision tests and drug tests.  They were required to discuss medications they were currently using.  They were asked a variety of questions about their medical histories. They were also subjected to invasive physical exams, which, on occasion, included genital examinations. Based on the results of these exams, individuals were ranked as “Qualified,” “Not Qualified,” or “Referred to Primary Medical Doctor.” The retailer hired only those individuals rated “Qualified.”

The lawsuit describes how one particular applicant applied for a position at a warehouse facility in Bessemer, Alabama. The applicant had monocular vision, considered by the EEOC to be a “disability” under the ADA. He disclosed the condition during his post-offer exam. He was told that the retailer required 20/50 vision or better in both eyes to pass the exam and that he would be rated “Disqualified” as a result of his condition. He was not hired because of this rating.

The EEOC alleges the retailer “uses qualification standards or selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities,” in violation of the ADA. The lawsuit alleges the retailer also refused to hire individuals with blood pressure readings of 160/100 or higher, or with high blood sugar readings. According to the EEOC, “Defendant’s qualification standards and selection criteria operate as blanket policies that go beyond the essential job functions, that are not mandated by law, and that screen out qualified individuals with disabilities on the basis of disability.”

The EEOC also alleges the retailer asked about individuals’ family medical histories in violation of the Genetic Information Nondiscrimination Act (GINA).  GINA prohibits employers from using an individual’s genetic information – such as family medical history – when making employment decisions. The questionnaires provided by the retailer for use during medical exams sought information about the medical history of individuals’ grandparents, parents and children – including cancer history, heart history and blood pressure history.  The conditional offerees were also subjected to additional questions about their families’ medical histories during examinations.

Lessons for employers

While an employer may utilize post-offer medical exams, it must ensure those exams are tailored to the essential functions of the job or jobs at issue. An employer must initially determine the essential functions of a particular position and ensure that the medical exam addresses only those functions. Keep in mind that simply sending an individual to a healthcare provider for a general physical examination may not be appropriate. An employer must also subject all applicants for a particular position to the same medical examination. Consider periodically auditing the scope of medical exams performed to ensure healthcare providers are not straying beyond the scope appropriate for a particular position. And remember, in no circumstances should an employer solicit family medical history for the purpose of making hiring decisions.

  • Equal Employment Opportunity Commission v. Dolgencorp , LLC, d/b/a Dollar General, Case No. 17-1649 (N.D. Ala.)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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