Jack Epter, a New York City Transit Authority clerk, applied for a promotion to station supervisor. Because the job was physically demanding, the Transit Authority required applicants to pass a physical exam. Applicants over 40 years old also had to undergo an EKG, something younger applicants had to do only if their physical exam or medical history indicated potential heart problems. Because Epter, who was 46, refused to have an EKG, he wasn’t promoted.
Epter sued, claiming that the Transit Authority violated the federal age discrimination law by imposing special requirements for applicants over 40. The Transit Authority argued that it had a legitimate medical reason for its policy: that people over age 40 have a higher incidence of heart disease than people under 40.
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Policy Violated Age Bias Law
A federal court concluded that the Transit Authority policy unlawfully discriminated against applicants over 40. Federal age bias rules require a more individualized assessment of applicants. Therefore, the Transit Authority should have used the same procedure for applicants 40 and over as it did for those under 40, insisting on an EKG on a case-by-case basis only if medically indicated. The court said that to require a medical exam based on age, you must have a compelling reason to justify the disparate treatment. And no such evidence existed in this case.
Review Your Job Requirements
You can also get into trouble with the Americans with Disabilities Act for having overly broad requirements for pre-employment medical exams. Take these steps to avoid disputes:
- Don’t use age-based criteria. Your job criteria shouldn’t relate physical qualifications to age. Instead, identify the essential physical capabilities needed for the position and state them as neutral criteria that applicants must meet, regardless of their age.
- Don’t require exams without a job offer. Although the issue was not raised in this case, under the ADA you can ask applicants to take physical exams only after extending a conditional employment offer. And you must test all applicants in that job classification, not just those who have a disability. Note that under recent Equal Employment Opportunity Commission guidelines, a current worker who applies for a new job is considered an applicant for ADA purposes.
- Don’t confuse medical procedures that are not exams. EEOC guidelines define medical exams as procedures that seek information about an individual’s health or impairments. Examples include vision tests, blood tests, blood pressure screening and range-of-motion tests. Screening for current drug use, tests of physical fitness or agility, and psychological evaluations for personality traits aren’t medical exams for ADA purposes. Note, however, that requiring these tests only for older workers could still violate age bias laws.