Q&A WITH NATHAN WHATLEY
EEOC sues retailer for alleged misuse of medical exams
Q: In September, the Equal Employment Opportunity Commission filed suit against Dolgencorp LLC, which does business as Dollar General Stores, Inc., for discriminating against certain job applicants. What were the allegations?
A: The commission alleges that Dolgencorp violated federal law when it rescinded job offers to applicants whose post-offer medical examinations revealed they had disabilities. The EEOC further alleges the examinations unlawfully solicited genetic information by seeking family medical history from the job applicants.
Q: What examinations were the company requiring?
A: The lawsuit alleges individuals were granted conditional offers of employment following an application and interview process. They then were subjected to medical examinations conducted by independent health care providers. These health care providers received instructions from the retailer about how to conduct the exams. They also received forms from the retailer to complete during those exams. During post-offer exams, individuals had their vital signs checked, were subjected to vision tests and drug tests, and were required to discuss medications they were currently using. They also were asked a variety of questions about their medical histories and were subjected to invasive physical exams, which, on occasion, included genital examinations. Based on the results of these exams, individuals were rated as “Qualified,” “Not Qualified” or “Referred to Primary Medical Doctor.” The retailer hired only those individuals rated “Qualified.” The lawsuit describes how one particular applicant applied for a position at a warehouse facility in Bessemer, Alabama. During his post-offer exam, he disclosed that he had monocular vision, considered by the EEOC to be a “disability” under the Americans with Disabilities Act. He was told that the retailer required 20/50 vision or better in both eyes to pass the exam and that he would be rated “Disqualified” as a result of his condition. He wasn’t hired because of this rating.
Q: What limits does the ADA put on employers asking medical questions or requesting medical examinations of its employees?
A: The ADA limits an employer’s ability to make disability-related inquiries or subject individuals to medical exams. No such inquiries or exams may be made until an offer of employment is made. Once a conditional offer of employment is made, an employer may make such inquiries or require such exams, provided it does so for all individuals within a job category. If the inquiries or exams screen out an individual because of his or her disability, the employer must demonstrate that the individual was rejected for a reason that is “job-related and consistent with business necessity.” Generally, the employer must show it had a reasonable belief, based on objective evidence, that an individual’s ability to perform the essential functions of a particular position would be impaired by a medical condition. The EEOC alleges the retailer “uses qualification standards or selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities,” in violation of the ADA. The lawsuit alleges the retailer also refused to hire individuals with blood pressure readings of 160/100 or higher, or with high blood sugar readings. According to the EEOC, “Defendant’s qualification standards and selection criteria operate as blanket policies that go beyond the essential job functions, that are not mandated by law, and that screen out qualified individuals with disabilities on the basis of disability.”
Q: What was the basis of the EEOC’s allegation that the company violated protections related to the employees’ genetic information?
A: The EEOC alleges the retailer asked about individuals’ family medical histories in violation of the Genetic Information Nondiscrimination Act. GINA prohibits employers from using an individual’s genetic information — such as family medical history — when making employment decisions. The questionnaires provided by the retailer for use during medical exams sought information about the medical history of individuals’ grandparents, parents and children — including cancer history, heart history and blood pressure history. The conditional offerees were also subjected to additional questions about their families’ medical histories during examinations.
Q: What lessons can an employer take from this case? A: While an employer is permitted to use postoffer medical exams, it must ensure those exams are tailored to the essential functions of the job or jobs at issue. First, an employer must determine the essential functions of a particular position. Second, the employer must ensure that the medical exam addresses only those functions. Keep in mind that simply sending an individual to a health care provider for a general physical examination may not be appropriate. An employer also must send all applicants for a particular position to the same medical examination. Employers should consider periodically reviewing the scope of medical exams performed to ensure health care providers aren’t going beyond what is relevant to a particular position. Remember, under no circumstances should an employer solicit family medical history for the purpose of making hiring decisions.