EEOC Files Suit Against Employer for Violation of Pre-Employment Medical Inquiries

The Equal Employment Opportunity Commission (“EEOC”) filed suit on March 22, 2016 in the United States District Court for the Western District of Missouri against Grisham Farm Products, Inc. (“Grisham”), for an alleged violation of Title I of the Americans with Disabilities Act (“ADA”) and of the Genetic Information Non-Discrimination Act (“GINA”). GINA prohibits employers from requesting or requiring genetic information from job applicants.

The EEOC alleged that Grisham “violated the ADA and GINA by requiring job applicants…to fill out a three-page ‘Health History’ before they would be considered for a job.” The EEOC referred to the form as “among the most egregious we have seen.” Part of Grisham’s job application contained 43 “yes or no” health-related questions. The plaintiff, a recent applicant for a warehouse position, refused to fill out the form because he would have been forced to reveal a disability. At the top of the health-related form, Grisham had printed, in large letters: “All questions must be answered before we can process your application.”

The plaintiff answered the first question, then stopped, because he believed he did not have to reveal his medical history to his potential employer. Had the plaintiff answered each of the 43 questions, he most certainly would have disclosed his medical condition and disability. The plaintiff called Grisham and asked about the health form. He was informed by a company representative that if he did not fill out the health form completely, then Grisham would not accept his application. The Plaintiff refused to fill out the application and subsequently was not offered a position.

The health-related form was reportedly similar to one found in a doctor’s office. The EEOC’s Complaint alleges that the application asked for 10 years medical history regarding the applicant’s, allergies, arthritis, bladder infections, eating disorders, gallstones, STDs, prior hospitalizations, HIV infections, treatment for alcoholism. Additionally the form inquired whether the applicant had seen a doctor, chiropractor, therapist, or other health care provider in the past 24 months.

The EEOC is seeking a permanent injunction against Grisham from continuing this practice of requesting pre-employment medical information from its applicants. Additionally, the EEOC is seeking monetary and punitive damages for the plaintiff.

This lawsuit brought by the EEOC is a good reminder for other employers that the ADA and GINA protect employees from employers asking about medical information before employment. An employer may not ask a job applicant:

• If he or she has a disability
• About the nature of an obvious disability
• To answer medical questions
• To take a medical exam before making a job offer.

However, an employer may ask a job applicant whether she or he can perform the job and how they would perform the job. Also, an employer may condition a job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same job have to answer the questions or taken an exam, and the requirement is reasonably related to the job duties.

Once an employer hires an applicant and the applicant has started work, the only time an employer can ask medical questions or require a medical exam is if the employee has made a request for an accommodation and the employer needs medical documents to support that request. Furthermore, if the employer has reason to believe an employer is unable to perform a job successfully or safely because of a medical condition, the employer may ask medical questions.

Finally, employers should remember that all employee medical records and information are confidential and should be kept in separate medical files.

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