By: Ruth Kraft, Esq.
The EEOC is on a roll. If, as an employer, you reject a job candidate based on a medical condition, even if directly related to job performance, you will find yourself in court---and incurring serious litigation fees.
It is especially problematic when an employer makes a conditional offer, which it then revokes. If it happens that the prospective employee has a health condition, even if the ostensible reason for the revocation is unrelated, the burden will clearly be on your shoulders.
I must say that I am not a fan of provisional offers. It is always better to do the due diligence first and, only then, make an offer of employment. I know that it doesn’t always happen that way in the real world, however.
Be careful not to tell an applicant that you are “moving forward” with an employment application. This could be construed by a court as a provisional offer. In a recent case brought by the EEOC in federal court, a company did just that, until it learned that the candidate had been diagnosed with prostate cancer. In a deposition, an employee reported that the owner made inflammatory remarks about the candidates’ medical condition, saying that he would end up in diapers and could not possibly be hired. Ouch! That case settled, pronto! Even though this case did not involve a pre-employment physical, as one typically encounters in ADA violations, the employer was subject to the anti-discrimination rule.
The ADA does permit conditional offers of employment pending the outcome of medical examinations. However, the results can only be considered in conjunction with ADA guidelines. Simply learning that a candidate had undergone surgery does not justify a finding that he is unfit to perform job duties unless he can prove to the contrary. The ADA requires an individualized assessment based on the essential job functions, which must fit the standard of business necessity. As the court ruled, an employer “cannot rely on myths and fears regarding whether a back surgery performed years earlier might place [it] at risk of potential liability.”
A pre-employment physical requirement will no longer offer employers a safe harbor for this type of decisionmaking. The ADA standards, as interpreted, are so strict in the current enforcement context that employer action, undertaken without the advice of counsel, can be quite costly.
It is especially problematic when an employer makes a conditional offer, which it then revokes. If it happens that the prospective employee has a health condition, even if the ostensible reason for the revocation is unrelated, the burden will clearly be on your shoulders.
I must say that I am not a fan of provisional offers. It is always better to do the due diligence first and, only then, make an offer of employment. I know that it doesn’t always happen that way in the real world, however.
Be careful not to tell an applicant that you are “moving forward” with an employment application. This could be construed by a court as a provisional offer. In a recent case brought by the EEOC in federal court, a company did just that, until it learned that the candidate had been diagnosed with prostate cancer. In a deposition, an employee reported that the owner made inflammatory remarks about the candidates’ medical condition, saying that he would end up in diapers and could not possibly be hired. Ouch! That case settled, pronto! Even though this case did not involve a pre-employment physical, as one typically encounters in ADA violations, the employer was subject to the anti-discrimination rule.
The ADA does permit conditional offers of employment pending the outcome of medical examinations. However, the results can only be considered in conjunction with ADA guidelines. Simply learning that a candidate had undergone surgery does not justify a finding that he is unfit to perform job duties unless he can prove to the contrary. The ADA requires an individualized assessment based on the essential job functions, which must fit the standard of business necessity. As the court ruled, an employer “cannot rely on myths and fears regarding whether a back surgery performed years earlier might place [it] at risk of potential liability.”
A pre-employment physical requirement will no longer offer employers a safe harbor for this type of decisionmaking. The ADA standards, as interpreted, are so strict in the current enforcement context that employer action, undertaken without the advice of counsel, can be quite costly.
Have a question or comment?
Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.
Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.