• Go to >
• SLAC Home |
• Photon Science |
• Particle Physics and Astrophysics |
• Operations |
• SLAC Today |
• For Staff |
• For Users |
• Detailed Index

Study One: Sequence of Events Matter

Discrimination on the Basis of Disability or Perceived Disability

Issue

The following case illustrates the critical role of timing in employment matters.  Three applicants for flight attendant positions were initially offered positions and later had their offers rescinded.  Their prospective employer withdrew their offers after learning that they tested positive for HIV (human immunodeficiency virus).  The three applicants took legal recourse and the role of timing in this case has determined that they will have their day in court.  The American Disabilities Act (ADA) prohibits physical examinations before background checks are completed, which determined that the employers’ sequence of actions was illegal. 

Case Background

Walber Leonel, Richard Branton, and Vincent Fusca received job offers from American Airlines contingent on their passing a medical exam, drug test, and background check.  When the three filled out forms for the medical exam, they did not disclose their HIV status.  The airline did not disclose that it would do a complete blood workup; in fact, one of the nurses told Fusco that the book test was for anemia.

When American found, as a result of the medical exam, that the three men were HIV positive, they rescinded the offers of employment, based on the fact that the men had not been truthful in filling out the medical form.  The men sued under federal and California law and a district court dismissed the case on summary judgment.  The three applicants appealed.

The appeals court agreed with the men and the case will go to trial.

Comments

Although the case was wide-ranging and included both ADA and privacy issues, there were two key factors in the court’s decision.

First, the sequence of events.  Under the ADA, a medical exam may only be given after the organization has made a “real” offer of employment.  That usually means that all other evaluations, including background checks, must be completed before the offer and before the medical evaluation.  American effectively did the medical test first, and the court – agreeing with guidance issued by the Equal Employment Opportunity Commission (EEOC) – found that to be an error. 

Second was the privacy issue.  American erred by not divulging the extent of the medical testing it planned.  The airline did obtain consent for the drug test, but not for the blood test. 

The ADA is a complicated and strict law.  To protect those with disabilities from discrimination, it mandates that the medical portion of the pre-employment evaluation be the last step, and be given only after issuance of an offer of employment. 

In addition, the same medical evaluation must be given to all applicants for the same job, not just applicants whom you suspect might have difficulty with the job.

Source

This article is adapted from the HR Manager’s Legal Reporter (May 2005 Issue 429) and modified to enhance readability.