Seyfarth Synopsis:In an ADA action alleging that a maker of train components discriminated against a group of applicants by regarding them as disabled, a federal district court in Illinois granted the EEOC’s partial motion for summary judgment, holding that the company’s decision to deny them work was based on improper tests concerning prospective injuries.
Employers should keep this ruling on their radar when considering medical testing in the job application process.
In EEOC v. Amsted Rail Co., No. 3:14-CV-1292, 2017 U.S. Dist. LEXIS 189713 (S.D. Ill. Nov. 16, 2017), Amsted made conditional job offers to thirty-nine applicants (the “Claimants”) for chipper positions, but placed them on medical hold because of abnormal results from a nerve conduction test (“NCT”). Id. at *2-6. The EEOC argued that Amsted violated the ADA by not hiring the Claimants on the basis of disability in regards to job application procedures and hiring. Id. at *7-8. Amsted justified its refusal to hire the Claimants by asserting there was a higher risk of developing carpal tunnel syndrome (“CTS”) for those with abnormal NCT results. After both parties cross-moved for summary judgment, Judge J. Phil Gilbert of the U.S. District Court for the Southern District of Illinois granted in part the EEOC’s motion for partial summary judgment, holding that the NCT did not indicate the Claimants’ contemporaneous inability to perform the chipper job, but only a prospective, future threat to their health if they were to perform the job.
This ruling illustrates that employers must be careful not to make hiring decisions based on the potential of future medical injuries.
Amsted employs “chippers” to finish the surfaces of the steel side frames for railcar components. Id. at *3. Chippers use pneumatically powered tools, such as 12-pound sledgehammers, to perform their jobs. The work requires intensive use of the hands and arms, and includes exposure to vibrations. In 2010 and 2011, during a hiring surge, Amsted offered employment to applicants who had the necessary skills and experience, but the offers were contingent on their passing a medical examination and other tests. Id. The medical examination aimed, in part, to determine applicants who were at higher risk of developing CTS, one of the risks of jobs that require intensive use of the hands and exposure to vibrations. Amsted contracted with an outside medical company to conduct on-site medical exams, which included a medical history questionnaire, measuring vital signs, vision and hearing assessments, a physical examination, and an NCT.
Applicants whose NCT was “abnormal” were put on “medical hold pending further data” regardless of any other information obtained in the examination. Id. at *4. This was done because the medical testing company believed abnormal NCT tests indicated that an applicant was “right on the verge of” developing CTS and losing the use of his hand. Id. Amsted was aware that applicants were being placed on hold because of an abnormal NCT result and authorized this use of the NCT results. Applicants who did not return with normal NCT results were not hired. Amsted did not hire any applicants who did not test normal on an NCT.
The EEOC alleged that Amsted violated the ADA when it denied the Claimants employment on the basis of their disability rather than an individualized assessment. Id. at *7. The EEOC argued that an abnormal NCT result was an inappropriate basis for making employment decisions. It further alleged that Amsted was not concerned with worker safety, but rather with reducing workers’ compensation costs. Amsted challenged the EEOC’s ability to prove all elements of its ADA case, including that the Claimants were qualified because they did not pose a direct threat. Id. at *9. As such, both parties cross-moved for summary judgment.
The Court’s Decision
The Court granted in part the EEOC’s motion for partial summary judgment. With the exception of one Claimant, Amsted did not challenge whether the EEOC had sufficient evidence to prove the Claimants were disabled. Id. at *10. The Court rejected Amsted’s challenge relative to the lone Claimant, noting that because Amsted conceded it refused to hire the Claimant because it feared he posed a safety risk in light of his prior CTS diagnosis and corrective surgery, no reasonable jury could fail to find that it regarded him as disabled Id. at *11. Regarding the element that the Claimants be qualified, the Court opined that the relevant case law established that the qualification question focuses on the individual’s condition at the time of the defendant’s employment decision, regardless of what may happen to the individual in the future. Id. at *15.
In addition, the Court addressed the adverse employment action element. Id. at *18. Amsted argued that the Claimants were not subject to an adverse employment action because they were not rejected for employment but were simply put on medical hold pending receipt of further medical information. The EEOC argued that Amsted’s placement of Claimants on medical hold was an adverse employment action because it effectively foreclosed future employment as a chipper. Agreeing with the EEOC, the Court held that “[t]he evidence show[ed] that the Claimants’ placement on medical hold due to an abnormal NCT result was an adverse employment action because it effectively precluded them from being hired.” Id. at *19.
Finally, the Court explained that the EEOC must show but-for causation in order to prevail. Id. at *20. Amsted argued that the EEOC could not establish a discriminatory intent because the company relied in good faith on medical judgments that the Claimants were unable to safely perform the essential functions of the chipper job or had certain medical restrictions. The Court rejected this argument, holding that Amsted took the Claimants out of the applicant pool because of its perception that they were disabled. Accordingly, the Court granted in part the EEOC’s motion for partial summary judgment.
Implications For Employers
In its Strategic Enforcement Plan for Fiscal Years 2017-2021, the EEOC identified eliminating barriers in recruitment and hiring as one of its six enforcement priorities (as we blogged about here). For employers in industries where an applicant’s medical background may be important, it is crucial for those employers to keep the EEOC’s strategic priorities in mind. When employers make hiring decisions based on the potential for future injuries, such as the employer here, they significantly increase their likelihood of facing EEOC-initiated ADA litigation. As such, employers should be exercise caution when implementing medical testing procedures for applicants, and ensure such procedures are lawfully conducted.