Job Applicants May Be Required Pre-Job Offer to Execute Medical Authorization Permitting Employer to Obtain Medical Information Following an Offer of Employment
The Employment and Labor Law Alert
October 9, 2003
In Green v. Joy Cone Company, __ F. Supp. 2d __, 2003 WL 22006270 (W. D. Pa. August 21, 2003), the District Court for the Western District of Pennsylvania considered whether an employer’s requirement that applicant’s complete a pre-hiring medical authorization violated the Americans with Disabilities Act. Green applied for a position with Joy Cone. The application materials explained Joy Cone’s physical examination policy and required the applicant to execute a medical authorization to allow Joy Cone to obtain the applicant’s medical records. Green completed the authorization but was not hired by Joy Cone. She filed a charge of discrimination with the Equal Employment Opportunity Commission alleging that the ADA prohibited the use of pre-hiring medical inquiries. The EEOC dismissed Green’s claim and issued a right to sue letter. Green filed a class action against Joy Cone alleging that its pre-hiring medical authorization policy was a per se violation of the ADA and sought damages and injunctive relief. Joy Cone moved to dismiss or, in the alternative, for summary judgment, on the grounds that Green lacked standing to sue and, in any event, there was no cause of action under the ADA. Green moved for partial summary judgment on the ADA claim.
Before the Court, Joy Cone did not deny the existence of its policy. Rather, it explained that the medical release form made it clear that a medical inquiry would not take place until after the applicant was offered employment. According to Joy Cone, the ADA permits an employer to conduct medical examinations or inquiries after an offer of employment has been made provided that all applicants are subject to the same procedures and the materials obtained are kept confidential. (citing 42 U.S.C. Section 12112(d). Joy Cone’s purpose in having the applicant execute the authorization prior to an offer was simply for convenience. Joy Cone also argued that Green did not have standing to sue since she had never been offered a position and, thus, Joy Cone never utilized the authorization. Moreover, Green did not claim to have a disability that would be covered by the ADA.
Green argued that Joy Cone’s practice was a per se violation of the ADA entitling her to summary judgment. On the issue of standing, she contended that she did not have to prove the existence of a disability in order to obtain injunctive relief. However, she requested further discovery in order to establish her entitlement to pecuniary relief.
The Court began its analysis by acknowledging the purpose and reach of the ADA. Specifically, the Court observed that the ADA is intended to prevent discrimination against persons with disabilities in the job application, hiring, advancement, and termination process. The Court noted that the ADA includes a section covering medical examinations and inquiries that is broken down into three distinct time periods: pre-offer, post-offer, and employment. In the pre-offer stage, which was at issue in this case, “a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.” 42 U.S.C. Section 12112(d)(2)(A). This section prohibits an employer from eliciting information that relates to an individual’s disability but permits an employer to inquire about an applicant’s ability to perform essential job functions. In the post-offer stage, an employer has more flexibility. Section 12112(d)(3) permits an employer to “require a medical examination after an offer of employment has been made to a job application and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination.” See 42 U.S.C. Section 12112(d)(3). Once an individual is hired and commences her employment duties, medical inquiries and examinations are only permitted when necessary and job-related. See 42 U.S.C. Section 12112(d)(4)(A).
In addition to the language of the ADA itself, the Court examined the EEOC guidelines, which it viewed as relevant though non-binding. See Enforcement Guidelines on Pre-Employment Inquiries Under the Americans with Disabilities Act, Daily Labor Report (BNA) No. 290 Section 902:0071. Like the ADA, the EEOC guidelines prohibit an employer from asking disability-related questions and requiring a medical examination pre-offer even where the employer does not intend to look at the results until after an offer has been made. The Guidelines also identify factors that can be used in determining whether a test required by an employer is a medical examination.
With this framework in mind, the Court considered whether Green, a non-disabled individual, could bring a claim for a violation of the ADA. The Court noted a split among the courts on this issue. Several district courts have determined that only a “qualified individual with a disability” may bring a claim under the medical examinations section of the ADA. Conversely, several courts of appeals, including the Tenth, Eighth, and Ninth Circuits, have concluded that the provisions of the ADA regarding medical examinations and inquiries are not limited to qualified persons with disabilities, relying upon the use of “job applicant” and “employee” in the statute. This Court concluded that Green could bring a cause of action under the ADA. According to the Court, “a violation of the ADA’s prohibition against pre-employment inquiries does not require a showing of a qualified disability.” (citations omitted). The Court was persuaded by the reasoning of the Court of Appeals for the Tenth Circuit in Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1229 n.5 (10th Cir. 1997), which held that “[i[t makes little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability.”
Next, the Court examined the merits of Green’s claim. Significantly, Green did not claim that Joy Cone obtained her medical records or that she was subjected to a medical examination. Moreover, she never claimed that she was disabled or that she had been asked whether she had a disability. Instead, the entirety of her claim focused on whether it was proper for Joy Cone to include the medical authorization form within the application materials. Green argued that its mere presence was a “medical inquiry” which, under these circumstances, was prohibited by the ADA. Joy Cone argued that since it did not obtain the records until after an offer of employment was made, the mere presence of the authorization was not a prohibited “medical inquiry.” The Court agreed with Joy Cone, finding that Green had to establish a pre-offer inquiry in order to establish a violation of the ADA. According to the Court, Green’s signature on the authorization form did not identify her as an individual with a disability or serve to establish the nature or severity of a disability. Thus, there was not evidence of a per se violation of the ADA
The Court was nevertheless troubled by the release form, since it gave Joy Cone the opportunity to access an applicant’s medical records. The first part of the authorization, relating to a physical examination, indicated that the examination would come only after an offer of employment had been made. However, the portion of the authorization relating to the release of medical records did not contain this limitation. Despite what it considered the “possibility of abuse,” the Court refused to find a violation of the ADA.
The final issue addressed by the Court was Green’s standing to sue under the ADA. In its inquiry, the Court considered the three constitutionally-mandated components of standing: (1) whether Green suffered an injury in fact, (2) whether there was a causal connection between the injury and the conduct addressed in the complaint, and (3) whether the injury was redressable by a favorable result. In order to establish an injury-in-fact, Green had to show a distinct and palpable injury to herself. The Court determined that since Joy Cone never made an offer of employment to Green and, thus, did not utilize the authorization to access her records, Green’s alleged injury was conjectural and speculative and she was not entitled to injunctive relief or pecuniary damages. Similarly, the Court found no causal connection between her claimed injury and the injunctive and pecuniary relief that she sought. Finally, the Court found no redressablity, concluding that a ruling in Green’s favor would not redress her injury of not being hired. Although an injunction preventing Joy Cone from using the authorization in its application materials would remedy the injury of “potential” premature discovery of the existence of a disability, the Court determined that this injury was too hypothetical.
Notwithstanding the favorable outcome in this case, employers must be aware of the ADA’s requirements concerning medical examinations and inquiries and the EEOC’s corresponding regulations. To avoid the type of litigation faced by the employer in this case, it may be prudent to avoid having an applicant execute an authorization or release until after an offer of employment has been made since an employer has more latitude in seeking medical information post-offer.