Third-Party Reports and Discrimination

Stokes Wagner

On January 27, 2021, the Third Circuit Court of Appeals let employers know that they cannot use recommendations from psychologists to justify disability discrimination in hiring. In Gibbs v. City of Pittsburgh, 989 F.3d 226 (3d Cir. 2021), the City routinely relied on psychologists to evaluate applicants for jobs as police officers. The plaintiff in Gibbs had aced the written test and received a conditional job offer, but two of the three psychologists who interviewed him recommended against his hiring because of his ADHD diagnosis and some criminal history as a youth, which occurred before he began treatment for his ADHD. The trial court dismissed his complaint essentially because it found that passing the psychological test was a prerequisite for the job and concluded that reliance on it did not reflect actionable discrimination. The Third Circuit, however, disagreed.

As the Third Circuit noted, the Americans with Disabilities Act and Rehabilitation Act protect job applicants not only if they are mentally impaired but also if an employer wrongly regards them as impaired, which does not depend on whether the perceived impairment limits or seems to limit a “major life activity.” In Gibbs’s complaint, he alleged that he had been hired as a police officer by five other departments, that he had never misbehaved as a police officer or as a U.S. Marine, and that the City had previously hired police officers whose similar youth criminal history was not related to ADHD. Thus, his complaint alleged that, although his ADHD was under control, the psychologists regarded it as a handicap and fixated on it in rejecting him, which was a violation of the law.

The Third Circuit noted that, under the law, “[a]n employer cannot evade its obligations under the ADA by contracting out personnel functions to third parties.” That includes “us[ing] a pre-employment examination as conclusive proof of an applicant’s [mental] capabilities. …[I]f the psychologists discriminated against Gibbs, Pittsburgh would be liable for relying on them.”

Both public and private employers need to be aware that they are the ultimate decision-makers in hiring, promotion, and termination decisions. They cannot avoid responsibility by relying on third-party psychologists, accountants, or other professionals if those professionals use impermissible factors to issue their recommendations.

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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