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PRE-EMPLOYMENT TESTING CHALLENGED UNDER ANTI-DISCRIMINATION LAWS
By Jennifer Brown Shaw
The Daily Recorder
2007-01-03

Anti-discrimination laws generally are simple to understand and abide by. Employers are prohibited from making decisions that are based on illegal criteria such as race, sex, or religion. In most cases, there is a straightforward analysis regarding the reasons an employer treated a plaintiff less favorably than a similarly situated co-employee.

Sometimes, however, "discrimination" is not based on an intentional desire to mistreat an employee. Rather, a court determines that an employer's failure to comply with technical procedures, or an employer's broadly applied policy, somehow affects applicants or employees in protected groups. In the context of disability discrimination, employers' decisions that seem lawful can be invalidated by a court's interpretation of a vague regulation or other provision that differs from the employer's interpretation.

A trio of recent decisions demonstrates how employers' seemingly innocent conduct amounted to "discrimination" against applicants.

The Timing of Pre-Employment Medical Examinations

Both the ADA and the FEHA permit pre-employment medical examinations. The timing of these inquiries, however, is critical. No medical inquiry or examination may be conducted before an employment offer is extended. The primary reason for this restriction is so employers may reject applicants based on qualifications, without requiring applicants to disclose medical information.

The ADA permits medical examinations and inquiries after a job offer is made, provided the employer requires the same examination for all applicants for positions in the same job class. The FEHA, however, requires such examinations to be "job-related and consistent with business necessity." That is an important distinction because it affects the type of examinations or inquiries that are allowed, depending on the nature of the job.

Even though "post-offer" medical examinations may be legal, employers must be sensitive to the timing of the examination. In Leonel v. American Airlines, the Ninth Circuit Court of Appeals held that post-offer medical examinations must be the final step in the hiring process or they are unlawful under the ADA.

Leonel and two others applied for flight attendant positions with American Airlines. American offered employment to all three, contingent on successful background checks and medical examinations. American sent the candidates for medical examinations while the background checks were processing.

As part of the medical screening process, the employees filled out questionnaires. The notice of drug testing forms warned the applicants not to falsify or omit information about medical conditions. Yet, they did not disclose their HIV status, which was discovered during the blood and urine tests.

American withdrew the job offers based on the applicants' failure to disclose the requested information on the medical questionnaires, rather than based on their HIV status. Leonel and the other two applicants brought suit under the ADA, FEHA, and California common law. The essence of their claims was that they were wrongfully refused employment because they should not have had to disclose their medical conditions before the background screenings were complete. Another claim involved American's use of the "complete blood count" test.

The district court granted summary judgment in favor of American. The Ninth Circuit reversed. The court of appeals held that a medical examination must occur as the final step in the recruiting process so that if the employer rejects the applicant for bad references or background check results, the applicant need not disclose medical information. The court rejected American's explanation that it needed to simultaneously perform the medical examinations and background checks so the recruiting process would not go on forever. The court similarly rejected American's contention that the applicant benefited from a shorter recruiting process.

Pre-Employment Tests May Illegally Screen Out Individuals with Disabilities

U.S. Department of Transportation ("DOT") regulates the operation of trucks of a certain size. Those regulations include drug testing and medical examinations, including tests for hearing acuity.

UPS operates smaller package delivery trucks that are not subject to federal DOT regulations. However, UPS requires its drivers to pass the DOT's hearing test as a job pre-requisite.

Bates represented a class of hearing impaired drivers who sued UPS under the ADA and FEHA. Bates claimed the hearing test illegally screened out deaf drivers who could perform the essential job functions of a small truck driver. He did not claim the hearing test was an unlawful medical examination, but rather a qualification standard that screens out a class of persons with disabilities. Obviously, the hearing test screened out those with hearing acuity lower than the DOT standard.

In defending the case, UPS was required to prove the qualification standard was "job related and consistent with business necessity." The court said that to succeed in this regard, UPS would have to prove (1) substantially all deaf drivers posed a significantly greater risk of accident than non-deaf drivers or (2) there was no way of determining which deaf drivers pose a substantially greater risk of accidents and which do not. The court analyzed the evidence UPS and the drivers presented and held it was "inconclusive." As a result, UPS failed to show that it was "necessary" to utilize a screening test that excluded deaf drivers falling below a certain level of hearing acuity.

Pre-Employment Strength Testing and Sex Discrimination

Dial Corporation owns a meat processing facility in Iowa. New employees were required to work in the sausage packing part of the plant. These employees lifted some 18,000 lbs. of sausages per shift, 35lbs. at a time, and walked about four miles while doing so.

Employees in sausage packing were more likely to be injured than other workers at the plant. Dial implemented a number of measures to curb the number of injuries. These measures included a new strength test for applicants. The test involved permitting applicants to lift a 35lb. bar and move it between two racks. An occupational therapist watched the applicant perform the task and evaluated whether the applicant could comfortably lift the 35lb. weight.

The Equal Employment Opportunity Commission ("EEOC") filed suit against Dial, claiming the test screened out female applicants at a greater rate than male applicants. To prevail, Dial was required to establish that the test was "job related and consistent with business necessity."

The EEOC attacked the test as unrealistic because it was "harder" than the actual job. Also, the EEOC's expert testified that women suffered accidents at a lower rate than men before the test was implemented, thereby proving it was unfair and unnecessary for the test to screen out more women than men.

The court decided Dial's test was not sufficiently job-related or consistent with business necessity to withstand challenge and allowed the case to proceed. A jury subsequently decided Dial's test constituted intentional discrimination because Dial "knew" the test was not a valid predictor of injuries. The test also had a "disparate impact" on females, because it unjustifiably screened out females even though there were discrepancies between the test and the job, and even though there was evidence that injury rates were decreasing before the test was implemented.

Conclusion

Many employers utilize pre-employment testing as a hiring tool. However, doing so is not without legal risk. While such testing, including medical examinations, can be conducted in a manner that is consistent with anti-discrimination laws, the courts' recent decisions in this area should give employers pause. To reduce potential liability, employers must carefully tailor their policies and procedures taking into consideration the job positions affected by the testing. In addition, employers should evaluate their testing programs in light of the legal principles discussed above to avoid inadvertent violations of anti-discrimination laws.

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