Diversity Insight

EEOC alleges medical exams and questionnaires violate ADA, GINA

by Courtney Bru

The Americans with Disabilities Act (ADA) limits employers’ ability to make disability-related inquiries or subject employees to medical exams. You may not take those actions until after you’ve offered the applicant a job. Once a conditional offer of employment has been made, you may ask about medical conditions or require a medical exam, as long as you do it for all individuals in that job category. If the inquiries or exam screens someone out because of a disability, you must demonstrate that you rejected him for a reason that is “job-related and consistent with business necessity.” Generally, you must show you had a reasonable belief, based on objective evidence, that his ability to perform the essential job functions would be impaired by his medical condition.  Health history form

EEOC: Standards, inquiries used to discriminate

The Equal Employment Opportunity Commission (EEOC) recently filed a lawsuit accusing a retailer of violating the ADA by rescinding job offers to applicants whose postoffer medical examinations revealed disabilities. The lawsuit alleges the retailer made conditional offers of employment following an application and interview process. The applicants were then subjected to medical exams conducted by independent healthcare providers. The retailer instructed the healthcare providers how to conduct the exams and gave them forms to complete during the exams.

During the postoffer exams, the applicants had their vital signs checked, took vision tests, and underwent drug screening. They were required to discuss medications they were currently using and were asked a variety of questions about their medical history. They were also subjected to invasive physical exams, which sometimes included genital examinations. Based on the results of the exams, the applicants were ranked as “Qualified,” “Not Qualified,” or “Referred to Primary Medical Doctor.” The retailer hired only the applicants who were rated “Qualified.”

The lawsuit describes how one particular applicant applied for a position at a warehouse in Bessemer, Alabama. The applicant has monocular vision, which the EEOC considers a disability under the ADA. After he disclosed the condition during his postoffer exam, he was told that the retailer required 20/50 vision or better in both eyes to pass the exam and he would be rated “Disqualified” because of his condition. Based on that rating, he wasn’t hired.

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 agency claims 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, the retailer’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 [their] disability.”

The EEOC also alleges the retailer asked about applicants’ family medical history in violation of the Genetic Information Nondiscrimination Act (GINA). GINA prohibits employers from using an individual’s genetic information—including his family medical history—in making employment decisions. The questionnaires the retailer required its healthcare providers to use during the medical exams sought information about the medical history of applicants’ grandparents, parents, and children, including their history of cancer and cardiovascular problems. The applicants were also asked questions about their family medical history during the exams. Equal Employment Opportunity Commission v. Dolgencorp , LLC, d/b/a Dollar General, Case No. 17-1649 (N.D., Ala.)

Lessons for employers

If you require job applicants to undergo postoffer medical exams, you must ensure the exams are tailored to the essential functions of the job or jobs at issue. The first step is determining what the essential job functions are; then you should ensure that the medical exam addresses only those functions. Keep in mind that simply sending an applicant to a healthcare provider for a general physical examination may not be appropriate. You must subject all applicants for a particular job to the same medical exam.

Consider periodically auditing the scope of your medical exams to ensure healthcare providers aren’t http://www.mcafeetaft.com/BFBDF9/assets/images/attorneys/2/Bru_Courtney_web.pngstraying beyond what’s appropriate for a particular job. And remember, you should never solicit family medical history for the purpose of making hiring decisions.

Courtney Bru is an attorney with McAfee & Taft, practicing in the firm’s Tulsa, Oklahoma, office. She may be contacted at courtney.bru@mcafeetaft.com.