The recent decision of the U.S. Court of Appeals for the Ninth Circuit in Leonel v. American Airlines confirms that unwary employers may violate the Americans with Disabilities Act ("ADA") by issuing conditional offers of employment contingent upon the applicant's successful completion of a medical exam without first completing all non-medical hiring procedures. In light of this decision, employers still wishing to conduct post-offer medical examinations should audit their conditional offer procedures and letters to ensure they complete all non-medical hiring procedures (such as prior employment or education verification, and background or criminal history checks) before extending conditional offers.
In Leonel, the Ninth Circuit reinstated a lawsuit brought by applicants who alleged their employer unlawfully required them to submit to medical examinations, and discriminated against them in violation of state and federal discrimination laws. The plaintiffs, each HIV-positive, applied for positions at American Airlines ("American"). After conducting telephone and personal interviews, American extended plaintiffs conditional job offers. These conditional job offers were contingent upon the applicants' successful completion of a drug test, a medical examination, and a background check of employment and criminal histories. Immediately after issuing the conditional job offer, American sent the plaintiffs to an on-site medical department to undergo medical examinations.
Upon discovering that plaintiffs were HIV-positive, American revoked the plaintiffs' conditional job offers on the grounds that they did "not meet [American's] medical guidelines," because the plaintiffs failed to disclose their HIV status as required by the medical history questionnaire.
According to the court, American's conditional job offers violated the ADA and California's Fair Employment and Housing Act because they were contingent not only upon the successful completion of medical hiring criteria, but also upon non-medical hiring criteria. Thus, they were not "real job offers." In the court's view, this ruling ensures that, "absent an inability to meet the medical requirements," an applicant knows he will be hired. Furthermore, if the applicant is not hired, the ruling effectively prods the employer into revealing the true reason for the rejection decision.
The court also addressed the plaintiffs' privacy claims under the California Constitution. Although American had obtained written consent from the plaintiffs for the urinalysis drug-testing, it had not provided notice of, nor obtained written consent for, the subsequently conducted blood tests. Reinstating the plaintiffs' privacy claims, the court held that the applicants had a legally protected privacy interest, and American's conduct amounted to a serious invasion of privacy. The issue of whether the plaintiffs had a reasonable expectation of privacy was remanded for determination by the district court.
Review hiring procedures to determine whether the benefits of conducting post-offer medical examinations outweigh the associated risks, including increased exposure to liability for discrimination and invasion of privacy.
Audit conditional offer letters and procedures to ensure that all non-medical hiring procedures have been completed before any conditional job offer is issued.
Always inform applicants of the nature of the medical exams to be conducted, and obtain written consent. While such practices do not insulate employers from privacy claims, they may provide a defense.
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