Tag Archives: EEOC Charges

EEOC Lawsuit Reminds Employers That Pre-Employment Health Inquiries Are Off-Limits

Contributed by Steven Jados, June 15, 2016

A recent consent judgment entered against Grisham Farm Products, in a lawsuit brought by the EEOC, Case No. 6:16-cv-03105 (W.D. Mo.) (June 8, 2016), provides an important reminder to employers that job application questions directed at medical histories are generally off-limits.

The case arose from an EEOC Charge filed by a man who did not even submit a job application. Instead, after seeing the application’s medical history questions, he headed to the EEOC and filed a Charge of Discrimination alleging violations of the Americans with Disabilities Act, as amended (“ADA”), and the Genetic Information Non-Discrimination Act of 2008 (“GINA”).

two insurance forms on a clipboard with a pen.

The job application included a three-page health history that asked 43 questions. The top page of the history stated: “All questions must be answered before we can process your application or change authorization”—potentially indicating that applications would be rejected for failure to provide a complete medical history. The history sought information on virtually any condition an applicant might have, from allergies to varicose veins. For each “yes” response an applicant gave, indicating a current or past medical diagnosis, the history sought additional information, including the dates symptoms presented, whether hospitalization was necessary, and the name and address of the applicant’s doctors and hospital.

It did not stop there. The history inquired about current medications, including dosage, the reasons for prescription, and the name and address of the prescribing doctor. The history concluded by asking applicants to disclose—again in complete detail—whether any surgery or medical testing had been recommended, and to provide recent blood sugar and blood pressure testing results.

Considering the ADA generally prohibits employers from conducting pre-offer medical examinations or inquiring into the existence or severity of an applicant’s disabilities, it was clear that this application violated the ADA. The fact that the man had not actually applied for a job was of no consequence. The ADA affords protection to persons who are deterred from applying for a job because of discriminatory practices or policies.

Additionally, because the health history required disclosure of consultations with “‘a doctor, chiropractor, therapist or other health care provider within the past 24 months’” and identification of “whether ‘future . . . diagnostic testing . . . has been recommended or discussed’ with [a] medical provider,” the application violated GINA by soliciting information that might reveal an applicant’s family history or other risk factors for certain medical conditions.

The consent judgment included a permanent prohibition from requiring any pre-offer medical examinations or pre-offer medical inquiries and a payment of $10,000.

This case serves as a reminder that an employer may not ask a job applicant medical questions before making a job offer. An employer may ask a job applicant if they can perform the essential functions of the job. The essential job functions should be listed in a job description that is provided or made available to the applicant.

2016 Brings Procedural Changes at EEOC, Are you Prepared?

Contributed by Suzanne Newcomb

Effective January 1, 2016 all 53 EEOC field offices across the country have implemented the Commission’s new “Digital Charge System,” an online portal through which employers 2016 computer calendarwill receive and transmit information to the EEOC. From now on, all major communications between the EEOC and employers, including the Commission’s service of newly filed EEOC charges, will be transmitted through the online portal. In most cases, the EEOC will no longer mail paper copies of EEOC charges and related documentation to employers. Instead, the EEOC will send an email to the employer instructing it to access the online portal to view and download the newly filed charge and related information (including deadlines and instructions for submitting its position statement electronically). The time period for providing the position statement (usually 30 days) begins to run when the portal is first accessed.

Also effective as of January 1, 2016 is the EEOC’s new nationwide policy to release the employer’s position statement to the charging party during the course of the investigation. Unfortunately the new policy is a one way street. Any written rebuttal submitted on the charging party’s behalf will not be shared with the employer.

What Should Employers Do Now?

  1. Designate a contact person to receive EEOC charges on the company’s behalf and provide your local EEOC office with an accurate email address for that person now. Yes, we mean before a charge is filed. Because initial notice that a charge has been filed will now be communicated via email, it is important that employers control who receives the notice.
  2. Alert management employees to the new procedure and instruct them to immediately forward any email communication from the EEOC to the company’s designated contact person. Because service is effected when the portal is first accessed, a supervisor who receives the first notice could unknowingly trigger the time period for submitting a response before upper management even knows a charge has been filed.
  3. Create and implement a data preservation policy to safeguard all potentially relevant information as soon as you learn a charge has been filed.
  4. Involve legal counsel before submitting your position statement. Because the position statement will now be provided directly to the charging party (and her attorney), it is more important than ever for employers to have experienced employment counsel involved before any information is submitted to the Commission.
  5. Assume anything you submit to the EEOC will be forwarded to the charging party’s attorney. The EEOC instructs employers to mark confidential information and advises that its investigators may redact confidential information prior to sharing the position statement with the charting party. No employer should assume the EEOC shares their view of what is confidential. Moreover, even if confidential information is redacted while the charge is pending, the Freedom of Information Act (FOIA) still allows the charging party to obtain a copy of the investigative file once the EEOC closes its investigation.