With the recent unemployment crisis and job opportunities even more difficult to come by, it is imperative that a keen eye is placed upon employers hiring practices and particularly how employers screen individuals in the pre-employment setting. Americans with disabilities can potentially be at a substantial disadvantage in the hiring process as they may be discriminated against with improper screening protocols. The Americans with Disabilities Act (ADA) clearly states no employer, “shall discriminate against a qualified individual (under the Act) on the basis of a disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.  With 72% of disabled people 16 years of age and older not in the labor force, there is certainly a cause for alarm as to whether or not disabled individuals are receiving fair treatment in the pre-employment setting.
First this article will begin by discussing the purpose of the ADA and list important provisions from the Act that pertain to pre-employment screenings. Then the article will describe the U.S. Equal Employment Opportunity Commission’s (EEOC) role in bringing a claim under the ADA. Next the article will review several cases in the pre-employment medical inquiry and evaluation context. Lest the article will conclude the article with relevant considerations employment law attorneys should be aware of when handling ADA claims in a pre-employment setting.
The ADA. When enacted on July 26, 1990, Congress found that physical or mental disabilities: 1) do not diminish a person’s right to participate in society, 2) the disabled have been precluded from doing so because of discrimination, and 3) others who have a record of a disability or are “regarded as” having a disability have been subjected to such discrimination. Four goals which Congress created with the promulgation of the ADA were to: 1) assure equality of opportunity, 2) allow the disabled full participation in society, 3) provide the disabled with an opportunity to live independently, and 4) assist disabled Americans in realizing economic self-sufficiency. Congress reasoned that discrimination has denied the disabled from equality in our free society and this discrimination has cost the United States billions of dollars resulting in dependency and non-productivity.
It is important to note that the ADA has been amended, effective January 1, 2009, with the ADA Amendments Act (ADAAA). The ADAAA was promulgated in the effort to expand the scope of the original ADA as the Supreme Court was interpreting provisions within the Act narrowly, which was counter to Congress’ original intent for a broad scope of protections for persons whom are disabled. There are at least two cases in which the Supreme Court interpreted provisions narrowly. The first is Toyota Motor v. Williams, which held that the definition of disability “needs to be interpreted strictly to create a demanding standard for qualifying as a disability” and requiring that an individual demonstrate a substantial limitation in activities of “central importance to daily life.” The second is Sutton v. United Airlines, Inc., which held that mitigating measures should be taken into account when assessing whether an impairment causes a “substantial limitation.” Congress overruled both Toyota Motor and Sutton in the ADAAA as Congress found that those cases were in fact counter to original congressional intent for a broad interpretation of the definition of disability. Two other major changes that resulted from the promulgation of the ADAAA were the expansion of the definition of “major life activities” and the “regarded as” prong in the disability analysis.
Congress has defined a disability in three different ways. The first is if an individual has a physical or mental impairment that substantially limits one or more “major life activities.” The second is if an individual has a record (history) of having such an impairment. The last involves the individual being “regarded as” having such an impairment. Prior to the ADAAA, the original Act did not list certain major life activities, however now the Act has a non-exhaustive list which includes, caring for oneself, manual tasks, seeing, hearing, eating, sleeping, walking. The list also includes major bodily functions such as functions of the immune system, normal cell growth, and reproductive functions. This list was actually created by the EEOC under the original ADA although left out of the original legislation. Congress incorporated the EEOC’s list when the ADAAA was enacted.
As previously mentioned, the other significant change resulting from the ADAAA was in the expansion of the “regarded as” prong of the disability analysis. An individual is “regarded as” having such an impairment if the individual is subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. The exception to the “regarded as” rule is that it does not apply to impairments with an actual or expected duration of six months or less. 
With respect to employers, the ADA only applies to companies that have 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year and any agent of such employer. As for candidates for employment, in order to receive protection the person must be a qualified individual. A qualified individual is a person whom with or without a reasonable accommodation can perform the essential functions of the position. Additional considerations courts will use in the qualified individual analysis are the employer’s judgment on essential job functions and whether the employer posted a job description as evidence for essential job functions. A reasonable accommodation may include, and is not limited to, taking time off for medical treatment, job restructuring, and acquiring or modifying equipment or devices for employees to perform the essential duties of the job. Although an accommodation may be requested, employers do not have to provide the accommodation if it would result in an undue hardship to the employer. Factors courts consider in finding an undue hardship are 1) the nature and cost of the accommodation, 2) the overall financial resources of the facility, 3) the overall financial resources of the company as a whole, and 4) the geographic area of the organizations operations.
Pre-Employment Provisions of ADA. With regard to discrimination in pre-employment, Congress has specified certain boundaries employers must adhere to in order for employers to avoid liability for discriminatory acts. One of these boundaries is the prohibition of examinations and inquiries as employers shall not require a medical examination and shall not make inquiries of an applicant as to whether such applicant is an individual with a disability or as to the nature or severity of the disability. However, there are caveats to this rule as employers may conduct such an examination or inquiry if the employer can show that the examination or inquiry is job-related and consistent business necessity, or if a conditional offer of employment has been extended to the applicant contingent upon the results of the medical examination. However, in the latter instance, the medical examinations or inquiries must be administered to all entering employees regardless of disability and the information gathered from the examination or inquiry must be maintained in separate forms and files and kept confidential.
Although employers have an affirmative duty to avoid discrimination in the pre-employment context, if employers can show the qualification standards, tests, or selection criteria denying employment were job-related and consistent with business necessity and such performance by the applicant cannot be accomplished by a reasonable accommodation, employers will be relieved of liability. A specific qualification Congress noted was that employers may include a requirement that an individual shall not pose a direct threat to the health or safety of others in the workplace.
The Role of the EEOC. The EEOC has been given the authority by Congress to create regulations consistent with the ADA. The regulations created by the EEOC are not binding authority on courts; however, they have in many instances carried significant weight in several courts decisions. The EEOC also provides technical assistance to employers and employees regarding ADA laws by issuing a questions and answers forum for employers and employees to reference for educational purposes.
There are several other functions the EEOC provides such as the investigation of claims, the facilitation of mediation, and the EEOC will at times sue on behalf of an aggrieved party. The last function seldom occurs however, as the EEOC more often than not will allow an aggrieved party to sue on their own by providing a plaintiff with a “right to sue” notice. Although parties are granted a right to sue by the EEOC, it is imperative that plaintiffs first file a “Charge of Discrimination” with the EEOC for any ADA related action under the EEOC’s jurisdiction.
The EEOC is also charged with the authority to approve employers notice to applicants of certain provisions regarding the ADA. The requirements the EEOC places on employers are that notice must 1) be in an accessible format to applicants, 2) the notice is placed in a conspicuous location on the premises and 3) the notice sets forth information on how to file a complaint under the ADA. Employers can create their own notice subject to the approval of the EEOC; however, the notice requirement is much more easily met by requesting a preapproved poster already created by the EEOC.
Pre-Employment Medical Inquiry and Evaluation Cases. In Malone v. Greenville County, a case from the U.S. District Court of South Carolina, the plaintiff Malone applied to be a Greenville County Sheriff in South Carolina. The Sheriff’s department extended a conditional offer of employment to Malone conditioned upon a drug screening, a polygraph test, a credit check and an acceptable performance on the physical abilities test. Malone was given a questionnaire on which he completed and informed the Sheriff’s department that he was diabetic. Immediately after his disclosure of this information, the hiring officer barred him from taking the polygraph test and rescinded the offer to Malone. The court held, “the remaining credit report and physical abilities test were enough to render the conditional offer not real and exposing Malone to medical inquiries [which were] improper.” The Malone court suggests that employers must not conduct medical examinations or inquiries prior to gathering all non-medical criteria in the evaluation process of an applicant even if a conditional offer of employment has been made.
Malone was a case that also involved additional ADA implications as the Sheriff’s department was gathering medical information and non-medical information on the same form. The court found, “there is no dispute that the medical information obtained by the defendant is solicited on the same page of the same form as non-medical information,” and held “[t]he commingling of medical and non-medical information ensured that the relevant decision maker would, at least, have the occasion to be aware of the plaintiff’s diabetic condition at the same time that he was processing other elements of the application process.” The District Court of South Carolina easily determined that the Greenville County Sheriff’s department’s process for gathering medical information was in conflict with 42 U.S.C. § 12112(3)(B) as information regarding the medical condition or history of the applicant must be maintained on separate forms and in separate medical files and treated as confidential.
Another case which involved a medical evaluation upon a conditional offer of employment is Holiday v. City of Chattanooga from the Sixth Circuit Court of Appeals. Holiday applied for a position as a Chattanooga police officer and was extended a conditional offer of employment upon passing a state mandated physical examination. During the medical examination Holiday informed the physician of his HIV status. The physician failed Holiday stating, “[h]e was not strong enough to withstand the rigors of police work,” even though Holiday was previously an officer for another municipality and had already passed both the written and the physical examinations. The Sixth Circuit found the physician’s opinion was not the product of the individualized inquiry mandated by the ADA, and is at odds with substantial evidence indicating that [Holiday] was in fact physically capable of performing as a police officer. The Sixth Circuit noticed that the City had already filed, in an early motion, their concerns about the potential HIV infection of its citizens if Holiday were to be in the line of duty. Although the city reversed track and filed a subsequent motion stating its reason not hiring Holiday was because he failed the medical examination, the prior motion was substantially damaging to the city as the Court held there was evidence that the City withdrew its offer because of its fears that Holiday would transmit HIV on the job. As the Sixth Circuit recognized, Holiday’s HIV status falls under the ADAAA’s major life activities category as immune system impairment and as a qualified individual, an employer must afford him an individualized inquiry by the employer’s medical examiner and the examiner cannot make generalizations about an applicant’s medical condition.
In Leonel v. American Airlines, a Ninth Circuit Court of Appeals case, HIV positive plaintiffs applied for flight attendant positions with American. American extended a conditional offer of employment contingent upon completed medical history forms, a medical examination and a background check. The medical history forms asked the plaintiffs if they had a blood disorder to which they omitted a response and failed to disclose their HIV status, when a question directly asked about the applicant's HIV status.  Following the completion of the forms the plaintiffs were then subjected to a medical examination which revealed an elevated complete blood count. When asked for an explanation, the plaintiffs thereafter disclosed that they were in fact HIV positive. American rescinded the conditional offer of employment citing the plaintiffs lied on the questionnaire as their reason. The Ninth Circuit held, “American was not entitled to [gather medical] information at all until it had completed the background checks on the plaintiffs, unless it could not reasonably have done so before initiating the medical examination process.” The plaintiffs prevailed on American’s motion for summary judgment and American was then burdened with showing that it could not reasonably have completed the background checks on the plaintiffs prior to initiating the medical inquiry.
The last case to be discussed here is medically related, however, the plaintiff’s medical condition was not discovered from a medical inquiry or examination. In Harrison v. Benchmark Electronics Huntsville, Inc., Harrison was a temporary worker contracted through an employment agency and was approached for full-time employment with Benchmark Electronics. Plaintiff completed his application and was asked to submit to a drug screening. Drug screenings are not prohibited by the ADA and are not considered medical examinations. The plaintiff tested positive for barbiturates, however, the plaintiff was taking barbiturates in order to control his epilepsy. The EEOC did not recognize epilepsy as a disability at the time. After being cleared by the Medical Review Officer whom plaintiff informed of his medical condition with the hiring manager present, the hiring manager thereafter refused to hire the plaintiff. The Eleventh Circuit held, “[w]e now explicitly recognize that a plaintiff has a private right of action under 42 U.S.C. § 12112(d)(2), irrespective of his disability status and a reasonable jury could infer that the hiring manager’s presence in the room was an intentional attempt likely to elicit information about a disability in violation of the ADA’s prohibition against pre-employment medical inquiries.” Although the plaintiff did not prevail upon remand, the holding in the case is quite significant as plaintiffs no longer have to show they are in fact disabled to bring a private right of action under the ADA.
Considerations for Employment Law Attorneys. As most of the cases discussed in this article resulted in the plaintiffs prevailing, it should be noted that these plaintiffs prevailed either on motions for summary judgment or a motion to dismiss. Plaintiffs more often than not have a much more difficult time prevailing upon remand. Employment law attorneys should be cognizant of the medical evaluation process and that employers must procedurally follow a protocol whereby employers must gather non-medical information prior to gathering medical information and only after a bona-fide conditional offer of employment has been made. Another important consideration is that non-disability class members may now bring lawsuits, at least in the Eleventh Circuit, which with the ADAAA’s broader scope and expansion of both “major life activities” and the definition of the “regarded as” prong of the disability analysis, plaintiffs are in a better position to make out a prima facie case. Lastly, employment law attorneys should also hold a keen eye to pre-employment questionnaires that commingle both medical and non-medical information and be weary of employers who disseminate confidential information recorded via medical inquiries, in violation of the ADA.
 42 U.S.C. § 12112(a).
 42 U.S.C. § 12101(a)(1).
 42 U.S.C. § 12101(a)(7).
 42 U.S.C. § 12101(a)(8).
 Toyota Motor v. Williams, 534 U.S. 134 (2001).
 Sutton v. United Airlines, Inc., 527 U.S. 471 (1999).
 42 U.S.C. § 12102(1)(A)-(C).
 42 U.S.C. § 12102(1)(A)-(C).
 42 U.S.C. § 12102(1)(A)-(C).
 See, 42 U.S.C. §12102(2)(A)-(B).
 See, 42 U.S.C. §12102(2)(A)-(B).
 42 U.S.C. §12102(3)(A).
 42 U.S.C. § 12102(3)(B).
 42 U.S.C. § 12111(5)(A).
 42 U.S.C. § 12111(8).
 42 U.S.C. § 12111(9).
 42 U.S.C. § 12111(10)(A).
 42 U.S.C. § 12111(10)(B).
 42 U.S.C. § 12112(4)(A).
 42 U.S.C. § 12112(2)(B).
 42 U.S.C. § 12112(3)(A).
 42 U.S.C. §12112(3)(B).
 42 U.S.C. § 12113(a).
 42 U.S.C. § 12113(b).
 Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933, 937 (3d Cir. 1997).
 42 U.S.C. § 2000e-10(a).
 Malone v. Greenville County, No. 6:06-2631-RBH-BHH, U.S. Dist. LEXIS 56520, at *1 (Dist. S.C. August 11, 2008).
 Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. 2000).
 Leonel v. American Airlines, 400 F.3d 702 (9th Cir. 2004).
 Harrison v. Benchmark Electronics Huntsville, Inc., 593 F.3d 1206, 1209 (11th Cir. 2010).
42 U.S.C. § 12114(d)(1).
 Id. at 1214-1216.
Steven A. Sibo is a 2L at Northern Illinois University’s College of Law. He is currently a Research Assistant to Professor Emeritus Jeffrey Parness and has participated in this year’s NLLSA’s National Moot Court Competition. Steve has a passion for both law and business as he is also in the process of completing his Masters of Business Administration at Loyola University Chicago. Prior to returning to academia, Steve was a Regional Sales Manager for Carrier Commercial Refrigeration when he decided to pursue his advanced degrees in law and business. Steve received his B.S. in Business Administration from Indiana State University.