You need to examine how your policies affect applicants and employees.

The basic premise of federal anti-discrimination laws is simple to articulate:

to avoid liability, employers must not make any employment decisions that are based on illegal criteria such as race, sex, age, disability or religion. It is long recognized that a conscientious employer should make considered decisions that are based on legitimate business concerns. This basic rule also applies to pre-employment decisions regarding job applicants.

As easy as this may sound, even the most diligent employers can find themselves “in trouble” when recruiting and processing job applicants. This can result from even the most well-intentioned conduct, as shown by recent Eighth and Ninth Circuit cases. These federal cases demonstrate how some seemingly reasonable pre-employment testing practices by employers proved to be “discriminatory” against job applicants.

The Timing of Pre-Employment Medical Examinations May Violate the ADA

The Americans with Disabilities Act and many state laws allow pre-employment medical examinations. However, under the ADA, no medical inquiry or examination may be conducted before an employment offer is extended. The primary reason for this restriction is to allow employers to accept or reject applicants on the basis of their qualifications, and without the influence of their medical information.

Even though “post-offer” medical examinations generally are legal, a federal court recently ruled that other timing factors must be considered to avoid discrimination claims. In Leonel v. American Airlines, the appellate court 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. The airline sent the candidates for medical examinations while the background checks were being processed.

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, the applicants did not disclose their HIV status, which ultimately was revealed during the blood and urine tests.

American withdrew the job offers because of the applicants’ failure to disclose the requested information on the medical questionnaires, not because of their HIV status. Leonel and the other two applicants brought suit under the ADA and other state law, claiming they were wrongfully refused employment because they should not have been asked to disclose their medical conditions before American completed the background screenings.

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 negative 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 applicants had benefited from a shorter recruiting process.

The lesson from Leonel is fairly simple. Courts are very interested in protecting the medical privacy of employees and applicants. Employers should not solicit this information, except on a “need to know” basis, to avoid liability. This rule applies to all employment practices, not just medical testing. When screening applicants for a legitimate business reason, obtain any needed medical information as the last step in any process wherever possible.

Pre-Employment Tests May Illegally Screen Out Individuals With Disabilities

The U.S. Department of Transportation regulates the operation of trucks of a certain size. Drug testing and medical examinations are required, 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 prerequisite.

In another case considering discriminatory practices related to pre-employment testing, Eric Bates represented a class of hearing-impaired drivers who sued UPS under the ADA and state law. 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 that 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 that 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 that (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 presented by UPS and the drivers and held that 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.

The Bates case is highly instructive to employers. Physical job criteria must not be overstated. To avoid liability, set the criteria at the minimum level needed to accomplish the job.

Pre-Employment Strength Testing May Result in Sex Discrimination

Yet another federal court recently considered whether pre-employment strength testing was discriminatory against women.

The 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 pounds of sausages per shift, 35 pounds 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 workplace injuries. These measures included a new strength test for applicants. The test involved having applicants lift a 35-pound bar and move it between two racks. An occupational therapist watched the applicant perform the task and evaluated whether the person could comfortably lift the bar.

The U.S. Equal Employment Opportunity Commission 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 that 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 that the test constituted intentional discrimination because Dial “knew” that it 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.

Like Bates, the Dial case clearly demonstrates that liability can result unless an employer sets physical criteria at the minimum level needed to accomplish a job. Engaging experts and counsel to assist with the analysis may be wise to ensure an accurate and complete assessment. Where there are disparities between men and women to consider (such as the workers’ compensation statistics that Dial could have looked at before implementing the strength test), extra caution should be taken to completely evaluate the validity of predictors before adopting a testing practice.

Question Even Basic Applicant-Screening Processes to Avoid Discrimination Claims

Many employers legitimately use pre-employment testing as a hiring tool (as outlined in the December 2006/January 2007 article in this Journal by Charles Handler). 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.

Employers should not limit applicant-screening concerns to testing. Instead, all pre-employment inquiries should be closely scrutinized to avoid inadvertent discriminatory conduct. Here are a few examples:

  • There is no federal law prohibiting an employer from hiring persons on the basis of where they live. However, an employer could violate Title VII if the residents of an excluded geographic area are primarily from one racial group. Discrimination of this sort could result from a well intentioned practice. For example, some employers have altered their recruiting/screening methods to favor applicants who live nearby because of research showing that workers who commute shorter distances are less likely to seek other employment. Depending on the demographics of the included or excluded areas, the racial/ethnic mix of the employee population could be skewed in an adverse manner and result in liability to the company.
  • There is no federal law prohibiting an employer from asking an applicant for the names of relatives and friends who work at the organization. However, an employer could violate Title VII as a result of this practice if the purpose is to give preferential treatment to friends and relatives of employees, and the workforce consists primarily of one race or ethnic group.
  • Although nothing in the federal anti-discrimination laws prohibits making employment decisions on the basis of marital status, this also can be a trap. Federal law clearly prohibits discrimination based on sex, so an employer that hires men with children but not women with children could violate Title VII. Also, although marital status is not a protected category under federal law, it is protected under the laws of some states.

In the end, taking a hard “second look” at even the most basic employment inquiries may prevent legal action. Employers that invest the time and energy to develop and implement lawful pre-employment inquiries can avoid liability. Employers must take a considered approach to this task and give significant thought to how any particular practice could result in “discrimination.” An organization’s good intentions and well-meaning motives are not enough — the practical impact on applicants and employees must be considered as well.

Note: This article is provided for informational purposes only and is not intended to offer specific legal advice. You should consult your legal counsel regarding any threatened or pending litigation.

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