Pre-Employment Medical Exams: A New, Scary Kind Of Discrimination

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illustration of a man looking with fright at hypodermicThe Genetic Information Non-Discrimination Act got lots of media attention when it first took effect in 2009, and then we didn't hear much about it. Until now, that is. The U.S. Equal Employment Opportunity Commission has announced that it filed and settled its first lawsuit under GINA, and that it filed its first GINA class-action suit. In both cases, employers conducted pre-employment medical exams that the EEOC said were illegal.

While the exams themselves may not have been illegal, the employers went wrong when they required the job applicants to fill out detailed family medical histories for these exams.

When are pre-employment medical exams illegal? Here are some ways that your potential employer's examination may violate your workplace rights:GINA: It is illegal for employers to discriminate against employees and applicants because of genetic diseases. That means employers can't use genetic information in making employment decisions. Employers aren't allowed to request, require or purchase genetic information about employees or applicants. Let's look at the two cases that the EEOC filed to see how the employers went wrong.

In the case against Fabricut, Inc. that settled, the company made a conditional job offer to the employee. The offer was contingent on her passing a pre-employment drug test and physical. When the employee went for her physical exam, EEOC says, "she was required to fill out a questionnaire and disclose the existence of numerous separately listed disorders in her family medical history. The questionnaire asked about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and 'mental disorders' in her family." Doesn't this sound exactly like every doctor's questionnaire you've ever filled out? But in this case, it was for an employer, and it was none of the employer's business. Had the employer conducted the exam without seeking this information, they might not have violated GINA. (They still violated another law, which I'll discuss in a minute.)

More:Genetic Discrimination: Can a Health Risk Put Your Job at Risk?

In the class action against The Founders Pavilion, Inc., the employer demanded family medical histories for both pre-employment physical examinations and annual employee physical exams. Employers need to wake up to GINA's requirements and tell physicians who conduct pre-employment physicals and annual physicals that they must stop requesting family histories or they risk violating the law.

Americans With Disabilities Act: The ADA makes it illegal for employers to discriminate against applicants and employees based on disabilities. For applicants, employers are not permitted to ask about disabilities at all until they make a conditional offer of employment. They may provide a list of job duties and ask if the applicant can perform all the job requirements.

They may only require drug tests or physical examinations if they are required of all applicants for the same job, once an offer is made. If the applicant is rejected due to a disability, the employer must show that the requirement is job-related, consistent with business necessity and -- if safety is the issue -- that the applicant poses a "direct threat" to his/herself or others, and that the risk can't be reduced with a reasonable accommodation. For example, if an applicant has macular degeneration and they are applying to be a SWAT sharpshooter, then the employer can probably exclude them. If they are a typist, probably not, since the condition can be accommodated with a CCTV or other device.

Going back to the two cases that the EEOC just filed, both employers were found to have discriminated based upon disabilities. Here's why.

More:15 Things You Need to Know About Disability Discrimination

In the Fabricut case, the company rescinded its job offer because it believed, based on the medical examination, that the applicant had carpal-tunnel syndrome (despite the fact that her doctor said she didn't). Employers are not allowed to discriminate against you because the employer regards you as disabled. By withdrawing the job offer based on a disability that they thought the applicant had, even though they got it wrong, the company violated the ADA.

In the Founders case, the EEOC says that the employer refused to accommodate a disabled employee during a probationary period, and that Founders fired two other employees because of perceived disabilities. If proven true, this will also be a violation of the ADA as well as GINA. That's still not all that the EEOC says Founders did wrong.

Pregnancy Discrimination: If a pre-employment examination discloses that an applicant is pregnant, the employer violates the Pregnancy Discrimination Act, which added pregnancy to the prohibition in Title VII against sex discrimination, if they refuse to hire the pregnant applicant. In the Founders case, the EEOC says that the company refused to hire or fired three women because they were pregnant.

Age Discrimination: While this issue didn't arise in either of these two cases, if an employer finds out that you are older than they thought when you submit to a pre-employment physical exam, the employer may violate the Age Discrimination in Employment Act if it rescinds your job offer due to your age.

Other Discrimination: If a physical examination reveals your race, national origin, religion or other information about a protected category that the employer didn't know about before it made the offer, then rescinding the offer based on that protected category would violate Title VII, the federal law against discrimination.

More:Catholic Teacher Fired After Getting Pregnant Awarded $171,000

What To Do If An Employer Broke The Law
Most of these laws apply only if your employer has 15 or more employees. The federal age discrimination law applies only if your employer has 20 or more employees. Your state, county or city may have a statute or ordinance that makes similar discrimination illegal for those employers with a smaller number of workers.

If you believe that you've been the victim of discrimination that violates federal law, your first step is to file a charge of discrimination with the EEOC. This is a requirement before you are allowed to sue. Your deadline is either 180 days or 300 days from the date of discrimination, depending on which state you live in. If the employer is the federal government, you have a different process and your deadline is 45 days to file with your EEO counselor.

While you may have an employee-side employment lawyer in your state represent you at the EEOC or with your state or local agency, you can also represent yourself, just as you can file a lawsuit yourself. I suggest talking to a lawyer before you file so that you can make sure your rights are protected by filing correctly.

If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues that you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs. While I can't answer every question here, your question might be featured in one of my columns, or an upcoming live video chat.


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