Posted on April 1, 2013 by Maria Danaher

Dishonest response on an initial application can come back to haunt an employee.

In a non-precedential opinion, the 3d U.S. Circuit Court of Appeals recently upheld a hospital’s firing of a security guard who had admitted that he was a recovering drug addict. Because that firing was based upon the fact that the employee previously had denied prior drug or alcohol addition/treatment, the court found that the hospital’s reason for the termination – the employee’s dishonest disclosure – was not a pretext for discrimination. Reilly v. Lehigh Valley Hospital, 3d Cir., No. 12-2078, March 29, 2013.

Robert Reilly was employed by Lehigh Valley Hospital (LVH) as a part-time Security Officer from August 2006 until May 2, 2008. During the application process, Reilly was asked to respond to the following two questions: (1) “Have you ever been recognized as or diagnosed with alcoholism or drug addiction?” and (2) “Have you ever been or are you now being treated for alcoholism or drug addiction?” Reilly answered “No” to both of the questions, and left blank a question that asked for information on any such treatment. A handwritten note on the application says “denies drug/alcohol addiction.” The application form included a statement that “falsifying of this information could result in withdrawal of the employment offer or if subsequently discovered termination of employment.”

On April 5, 2008, Reilly was admitted to the Emergency Room of LVH to receive treatment for a work-related eye injury. During that visit, Reilly disclosed to the treating physician a history of narcotics use and admitted that he was a recovering addict. When an LVH employee sustains a possible work-related injury and is treated by LVH, the medical records routinely are furnished to the hospital’s Health Services Department, which manages and administers workers’ compensation issues. Upon receiving Reilly’s records, Health Services informed LVH’s Human Resources Department of Reilly’s statement regarding his addiction and recovery. Reilly was fired on May 2, 2008 for failure to disclose the information during the application process.

Reilly filed a lawsuit against LVH alleging disability discrimination. During a deposition in the case, Reilly testified that following a conviction for DUI in 1995, he attended approximately 40 hours at a drug and alcohol treatment center as part of an Accelerated Rehabilitation Disposition program. He testified that he did not consider himself to have received addition treatment at that point, because he continued to abuse drug and alcohol after that time.

LVH’s motion for summary judgment in the case was granted by the district court, and Reilly appealed. The Third Circuit upheld the decision. In applying the now well-known McDonnell Douglas burden-shifting framework, the Third Circuit found that Reilly was able to set forth a prima facie case of discrimination, and that LVH was able to proffer the required legitimate business reason for its action. The district court found – and the Third Circuit agreed – that Reilly failed to satisfy the third step by adducing sufficient evidence to show that LVH’s reason was simply a pretext for discrimination.

The Court viewed the primary issue in the case as “whether the decision-maker at LVH could regard Reilly’s responses as dishonest.” According to the Court: “The answer to that question is resoundingly, ‘yes.’” The evidence established that Reilly received 40 hours of addiction treatment, and that he regularly attended and still attends AA and NA meetings. In spite of those facts, Reilly answered “no” to questions on the employment application asking whether he had ever been or currently was “recognized as,” diagnosed with,” or “treated for” alcohol or drug addiction. Given that circumstance, Reilly is unable to prove that LVH’s proffered reason for his firing – dishonesty – was a pretext for discrimination.

This case is not a license to fire individuals simply because they are or have been in drug or alcohol rehabilitation. In fact, it is important to recognize that under the American with Disabilities Act, an individual who is in recovery for drug or alcohol addiction may be considered to be protected under the Act. However, this case does point out the fact that language on an employment application clearly informing applicants that dishonest responses can lead to non-hire or even firing will be upheld by a court.
 

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Posted on December 12, 2011 by Maria Danaher

OFCCP's proposed revisions to regs require increased obligations and affirmative action regarding disabled individuals.

Section 503 of the Rehabilitation Act of 1973, as amended ("Section 503"), prohibits employment discrimination by federal government contractor and subcontractor employers against individuals with disabilities. It also includes affirmative action provisions that relate to both hiring and advancement of disabled individuals by those same employers. The provisions of Section 503 apply to government contractors with contracts/subcontracts of over $10,000 for the purchase, sale, or use of personal property or non-personal services, specifically including construction services. Contractors/subcontractors that have a contract/subcontract of at least $50,000 and at least 50 employees are required to prepare and maintain an Affirmative Action Program (AAP) to document efforts to comply with Section 503.

The federal government’s Office of Federal Contract Compliance Programs (OFCCP) has proposed revisions to regulations that implement and enforce Section 503. Those revisions set forth certain data collection obligations and establish utilization goals to be met by contractors to assure the effectiveness of affirmative action efforts. The major points included in the proposed revisions are: (1) increased contractor obligations for data collection and AAP content related to disabled employees; (2) expansion of requirements regarding outreach agreements and specific affirmative methods for hiring the disabled; (3) addition of written reasonable accommodation procedures.

Under the proposed rule, contractors will be required to document and annually update calculations of referral data, applicant data, hiring data (including the "hiring ratio" of disabled employees to total hires), and "job fill ratio" (job openings to job hires). Contractors must conduct ongoing analyses of the data to assure effectiveness of affirmative action policies. Part of the data will be obtained through contractors’ solicitation - under the provisions of the new regs – of voluntary self-identification of disabled status from employees and applicants. The OFCCP asserts that such self-identification does not violate the provisions of the ADA, because both the ADA and Section 503 permit contractors to conduct a pre-offer inquiry into disability if it is made pursuant to a law requiring affirmative action for individuals with disabilities (i.e., the Vietnam Era Veterans’ Readjustment Assistance Act).

The revised regs also would require contractors to list all employment opportunities in specific outreach and recruitment efforts, including "linkage" agreements with the nearest State Vocational Rehabilitation Agency office, or with other organizations in a network specified in the regs. The proposed revisions specifically require contractors to send written notification of the company’s affirmative action efforts to subcontractors and subcontractor vendors/suppliers to request similar action on their parts to assist individuals with disabilities.

An added section of the proposed regulations require each contractor with an AAP to develop and implement a written policy outlining procedures for processing requests for reasonable accommodation. The provision lists the specific elements that must be included in such policy, including contact information, a description of the process, a timeframe for the processing of such requests, and a mention of the confidentiality of the process. This is in addition to revised AAP content requirements that include a mandatory statement from the contractor’s CEO indicating support for the AAP, a comprehensive annual review (revised from "periodic") of related processes, external and internal dissemination of the AAP, and the development and maintenance of an audit and reporting system that will be used to evaluate the company’s affirmative action efforts.

The OFCCP has concluded that the establishment of a national goal for hiring individuals with disabilities is warranted. Therefore, the proposed regulations include a specific "utilization goal" of seven percent for all federal contractors. That percentage will apply for each EO 11246 job group in a contractor’s workforce. The OFCCP also is considering the establishment of a sub-goal of two percent for the hiring of individuals with certain severe disabilities, including blindness, total deafness, paralysis, and intellectual and psychological disabilities.

While the proposed regulations do not include any requirement for "priority consideration" of individuals with disabilities in recruitment or hiring, the proposal does include a section encouraging contractors to voluntarily develop and implement programs that provide such consideration. Contractors choosing to use such a program must include a description and a report of outcomes in its AAP.

On November 30, 2011, the Office of Management and Budget (OMB) approved the OFCCP’s Notice of Proposed Rule Making, in which the OFCCP outlined its proposed revisions to strength the affirmative actions provisions of Section 503. (The OMB evaluates the effectiveness of various agency programs and policies, and sets funding priorities for them. It also ensures that proposed legislation is consistent with the federal budget and policies.) The approval means that the proposed rule changes are now published in the Federal Register, and a final opportunity for comment is open until February 7, 2012. Comments can be submitted through

http://www.regulations.gov, or in writing to Debra Carr, Room C-3325, 200 Constitution Avenue NW, Washington, D.C. 20210. The reference number, which should be included with comments, is (RIN) 1250-AA02.

 

The proposed Section 503 regulations expand both the scope of recruitment and hiring of disabled individuals, and data collection/reporting requirements for contractors. One of the most critical provisions, however, is one requiring contractors to provide training to personnel involved in recruitment, hiring, promotion, and disciplining. That training should include the contractor’s affirmative obligations under the regs and should outline the benefits of employing individuals with disabilities, as well as informing such personnel of the contractor’s legal obligations in this area. Comprehensive, objective training in this area can help to alleviate some of the burden that the new regulations are perceived to impose.

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Posted on December 2, 2011 by Maria Danaher

High school diploma as pre-requisite to employment may violate the ADA.

On December 2, 2011, the EEOC posted an “informal discussion letter” on its website. The letter was in response to an issue involving individuals who are unable to earn a high school diploma because of certain learning disabilities and who therefore are ineligible for jobs that require a high school education. According to the EEOC, a qualification standard - including a high school diploma requirement - that screens out individuals on the basis of a disability must be job related and consistent with business necessity, or such standard may violate the Americans with Disabilities Act.

A qualification standard is “job related and consistent with business necessity” if it accurately measures an applicant’s ability to perform the fundamental responsibilities of the job in question. However, that measurement is simply the first of two steps. Once it is determined that the qualification standard being used to screen out applicants is job related and consistent with business necessity, the employer also must show that an individual who does not meet that standard is unable to perform the essential functions of the job, even with an accommodation.

That means that, for instance, if an employer requires a high school diploma as a baseline for hiring, and that baseline screens out an individual with a learning disability, the employer must fulfill both steps of the process in order to comply with the ADA. Specifically, it first must demonstrate that a high school education is a job related requirement for the particular job, and that the essential functions of the job cannot be effectively performed by someone without a high school diploma. It must then go one step further, and determine whether the individual applicant whose learning disability kept him or her from obtaining a diploma can perform the essential functions of the job, with or without a reasonable accommodation. If that particular applicant is able to perform the essential functions of the job, despite the inability to meet the qualification (high school diploma), the employer cannot use the lack of diploma to screen out the disabled applicant from the applicant pool.

While this rationale was set forth in an “informal” letter from the EEOC to an employer and does not have the force of law or regulation, it is worthy of notice. While an employer is not required to “prefer” a learning disabled applicant over other applicants with more extensive qualifications, it is clear that the EEOC is informing employers that disabled individuals cannot be excluded from consideration for employment based upon artificial barriers in the form of inflexible qualification standards.
 

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Posted on January 17, 2010 by Maria Danaher

Non-disabled individual can support claim of "improper medical inquiry" under the ADA.

The Americans with Disabilities Act makes it illegal for employers to discriminate against disabled individuals. To that end, the Act includes a provision that, prior to an actual offer of employment, an employer “shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.” The only inquiry that can be made is whether the applicant is able to perform job-related functions. In a case of first impression, the 11th U.S. Circuit Court of Appeals has held that a non-disabled employee can sue an employer for prohibited medical inquiry under the ADA. Harrison v. Benchmark Electronics Huntsville, Inc., 11th Cir., No. 08-16656, Jan. 11, 2010.

John Harrison was assigned as a temporary employee with Benchmark Electronics Huntsville, Inc. (BEHI) in 2005, working to repair and test electronic boards. At that time, if a BEHI supervisor believed that a temporary employee would meet the company’s needs, he could invite that individual to submit an application for permanent employment, which required undergoing a drug test and background screening.

In May 2005, Harrison submitted an employment application to BEHI at the suggestion of his supervisor, Don Anthony, and underwent the required drug screening and background check. At that point, Harrison had never been informed of any performance deficiencies or problems with his work attitude. Harrison’s drug screening came back positive which, under BEHI’s policy, required review by a Medical Review Officer (MRO). Anthony was contacted by BEHI’s HR department and was asked to “send [Harrison] her way.” Although HR did not tell Anthony about the positive drug test, Anthony discovered that information on his own, and informed Harrison that the test had come back positive for barbiturates. Harrison stated that he had a prescription for the drug, and Anthony asked him to produce it. Anthony immediately called the MRO and passed the phone to Harrison. Anthony remained in the room while Harrison answered a series of questions from the MRO, explaining that he had been diagnosed with epilepsy at age two, and took barbiturates to control the effects of that disease.

Shortly afterward, Harrison was informed by the MRO that his drug test had been cleared. However, Anthony told HR not to prepare an offer letter for Harrison. He further asked the temporary agency not to return Harrison to BEHI, stating that Harrison had “performance and attitude problems.” Harrison immediately was fired from the agency.

Harrison filed a lawsuit against BEHI under the ADA, alleging that the company had engaged in improper medical inquiry. BEHI moved for summary judgment which was granted by the district court. That decision was reversed by the 11th Circuit on appeal. The primary basis for the reversal was the appellate court’s answer to the question of whether a non-disabled individual can state a private cause of action for a prohibited medical inquiry under the ADA. (The EEOC had determined that Harrison’s epilepsy did not rise to the level of “disability” under the ADA. Although the 11th Circuit had not previously addressed that issue, it held – consistently with sister circuits which have specifically addressed that question – that the ADA precludes inquiries with respect to any applicant who has not yet received a job offer, whether or not the individual is disabled under the ADA.

This case raises an interesting issue. The ADA specifically recognizes an exemption for pre-employment drug tests (“a test to determine the illegal use of drugs shall not be considered a medical examination”), and allows an employer to validate the test results by asking about lawful drug use or possible explanations for the positive result other than illegal use of drugs. However, as this case makes clear, disability-related questions are prohibited. In fact, the Court in this case quotes the legislative history of the ADA to point out that the drug-test exemption “should not conflict with the right of individuals who take drugs under medical supervision not to disclose their medical condition before a conditional offer of employment has been given.” Therefore, while an employer may conduct follow-up questions in response to a positive drug test, there are specific limitations on the types of information that can be elicited by someone other than a medical officer. While BEHI’s procedure to have an MRO conduct follow-up questioning may have been consistent with the ADA, Anthony’s presence during Harrison’s responses and revelation of his medical condition was held by this Court to preclude summary judgment in favor of the company.
 

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