Benjamin Franklin’s “honesty is the best policy” has endured for nearly three centuries, except apparently at the Equal Employment Opportunity Commission. EEOC v. Aurora Health Care, Inc. (E.D. Wis. May 14, 2015). The challenge to Mr. Franklin’s wisdom and a widespread employer practice arose when an applicant for a hospice care coordinator position failed to respond truthfully to a post-conditional offer medical questionnaire, which resulted in the employer withdrawing its offer.

Aurora complied with the Americans with Disabilities Act in all respects (at least we think so). Kelly Beckwith, who had a mild case of relapsing/remitting multiple sclerosis and took medication for that condition, applied online for a hospice care coordinator position. Aurora’s application, like many employers’ applications, cautioned that it could withdraw any job offer if the applicant did not provide truthful information. Aurora extended an offer to Beckwith, but made it contingent on the results of a pre-employment physical questionnaire and exam. When completing the form,  Beckwith failed to disclose that she had experienced symptoms of MS and she did not disclose her use of the prescription drug for her MS. Beckwith claimed she voluntarily disclosed these during the interview portion of the physical exam, but Aurora contends that Beckwith did not disclose the symptoms or the prescription during the interview, but only later when she was confronted with the discrepancy between her responses and her medical records. (Beckwith, like all post-offer employees, had authorized Aurora to access her medical records, which disclosed the symptoms and prescription). Acting on the reports of others and believing Beckwith had been untruthful in both her written questionnaire and verbal interview responses, an Aurora manager withdrew Beckwith’s offer due to her dishonesty.

The EEOC, on Beckwith’s behalf, alleged that Aurora’s withdrawal of the offer wasn’t because of Beckwith’s dishonesty, but because of her disability. One of Aurora’s many strong defenses was that Beckwith wasn’t qualified for the job because honesty was an essential job function, and Beckwith didn’t have it. In addition to its language on the application and its track record of terminating employees for dishonest responses of all kinds, Aurora argued that honesty was essential to the job because the job of hospice care coordinator involved entering the residences of the Company’s patients and completing medical forms, all without supervision. Yet, the Court found that Aurora hadn’t met its burden of showing that honesty was an essential job function in part because honesty was not listed on the job description. The court stated that it is up to a jury to determine whether “honesty” is an essential job function (honestly we can’t make this stuff up). One would think that honesty is one of those essential job functions for every job, but apparently the EEOC—and this Court— believe otherwise.

On this question and others raised by the case, the EEOC’s stance and the Court’s reasoning are puzzling, and may not pass muster with a jury or on appeal. We recommend that if employers currently hold applicants and employees accountable to telling the truth, they continue to do so in a consistent manner, and that they ensure that their written job descriptions clearly establish honesty as an essential job function.