Requiring applicant BNSF perceived had a back impairment to pay for MRI, revoking job offer when he refused, showed disability bias

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By Kathleen Kapusta, J.D.

BNSF perceived an applicant for a senior patrol officer position as having an impairment at the time it asked for an MRI and at the time it revoked his job offer, the Ninth Circuit stated, finding BNSF could not hide behind its argument that there was some uncertainty as to the actual state of his back when it assumed he had a back condition that disqualified him for the job. Finding further that he was qualified and that BNSF impermissibly conditioned his job offer on his procuring an MRI, at his own expense, because it assumed he had a back impairment, the appeals court affirmed the judgment imposing liability on BNSF under the ADA. It vacated, however, the lower court’s nationwide injunction that prohibited BNSF from engaging in certain hiring practices, finding the court below needed to make adequate factual findings to support the injunction’s scope (EEOC v. BNSF Railway Co., August 29, 2018, Gould, R.).

Back issues? At the time the applicant applied for a senior patrol officer job with BNSF, he was working as a criminal investigator in a county sheriff’s office. BNSF offered him the job contingent on passing a background check and medical exam. During the evaluation process, the applicant disclosed that he suffered back pain as a result of a back injury four years earlier. He claimed, however, that he had kept the same job after he was injured and had no current back issues. He also submitted a letter from his chiropractor stating that he responded well to care; a 2007 MRI; and a note from his physician, who had just examined him, stating that he had no current back problems. A doctor for the company that performed the medical evaluations for BNSF also examined the applicant and found no issues with his back that would prevent him from performing the duties of the patrol officer job.

MRI required. Nonetheless, BNSF’s medical officer requested a current MRI. He was not currently in pain, however, so his insurance company would not cover the $2,500 cost, and the applicant, who was in bankruptcy at the time, could not afford to pay for it. Because he did not obtain an MRI, BNSF designated him as having declined the conditional job offer. He filed a charge with the EEOC, which then sued on his behalf under the ADA.

District court proceedings. Granting summary judgment to the EEOC on the issue of liability, the district court found it established all three elements of a prima facie case for disability discrimination under Section 12112(a). The court then entered a nationwide injunction, mandating that “BNSF must bear the cost of procuring any additional information it deems necessary to complete a medical qualification evaluation” and requiring that “[i]f BNSF chooses not to procure additional information, it must complete the medical examination process, i.e., it must use the medical information it does have to make a determination about whether the applicant is medically qualified for the job for which the applicant received the conditional offer.”

Disabled? On appeal, the parties agreed that for BNSF to have regarded the applicant as having a disability, it must have regarded him as having a current impairment. BNSF argued, however, that it did not perceive him to have an impairment and that its medical officer was simply “unsure” of the state of his back and so sought additional information. But, the EEOC countered, BNSF actually knew he had a current impairment because his disc extrusion was a permanent condition.

Required to disprove he was not qualified. Whether or not his disc extrusion was a permanent condition was irrelevant, said the court, noting that in requesting an MRI because of his prior back issues and conditioning his job offer on the completion of the MRI at his own cost, BNSF assumed he had a “back condition” that disqualified him from the job unless he could disprove that proposition. In rejecting his application because it lacked a recent MRI, BNSF treated him as it would an applicant whose medical exam had turned up a back impairment or disability. “BNSF chose to perceive Holt as having an impairment at the time it asked for the MRI and at the time it revoked his job offer,” the court explained, concluding that BNSF perceived him to have an impairment for purposes of the ADA.

Discrimination based on perceived impairment. As to whether BNSF discriminated against him because of his perceived impairment, the court observed that requiring an applicant to pay for an MRI—or else lose his job offer—because he has a perceived back impairment is a condition of employment imposed discriminatorily on a person with a perceived impairment. Moreover, said the court, given the indisputably high cost of MRIs, requiring one as a condition of employment will for many individuals mean a disqualification from participating in the process.

While BNSF argued that Section 12112(d)(3)—which provides that a “covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination”—authorized exactly this type of action, it failed to mention that the statute qualifies this by stating that these medical exams can only be given if “all entering employees are subjected to such an examination regardless of disability.”

Silent as to cost. The EEOC conceded that BNSF could have required the applicant to get an MRI if BNSF had offered to pay for it, but the court pointed out that while Section 12112(d)(3) authorizes testing that may disproportionately affect persons with disabilities, it does not, by extension, authorize an employer to further burden a prospective employee with the cost of the testing. The ADA is silent as to who must bear the costs of testing.

Because the ADA allows an employer to “require a medical examination” and not to merely “give” or “request” one, BNSF argued that it empowers employers to force applicants to pay for the costs of testing. That reads too much into the word “requires,” the court explained: “the word ‘require’ indicates nothing about who must bear the costs of any medical testing.” Accordingly, it held that the standard anti-discrimination provision of the ADA and the ADA’s policy purposes should control on the issue of who must bear the costs of testing. And where an employer requests an MRI at the applicant’s cost only from persons with a perceived or actual impairment or disability, the employer is imposing an additional financial burden on a person with a disability because of that person’s disability, the court reasoned. In the case of an expensive test like an MRI, “making an applicant bear the cost will effectively preclude many applicants, which is at odds with the ADA’s aim to increase opportunities for persons with disabilities.”

Subverts ADA goal. Further, the ADA requires employers to pay for reasonable accommodations unless it is an undue hardship. Consequently, the court reasoned that allowing employers to place the burden on people with perceived disabilities to pay for follow-up tests would subvert the ADA’s goal of ensuring that those with disabilities have “equality of opportunity” and would force people with disabilities to face costly barriers to employment. Requiring employers to bear the costs of this testing would also discourage unnecessary and burdensome testing of persons with disabilities or impairments, and prevent employers from abusing their ability to require tests.

Causation established. And while BNSF argued that the EEOC did not show that it acted with a discriminatory motive, or that its justifications for its behavior were pretextual, the court explained that where it is clear that an action was taken because of an impairment or perception of an impairment, no further inquiry or burden-shifting protocol is necessary to establish causation. Here, said the court, there was no question BNSF conditioned the applicant’s job offer on his obtaining an up-to-date MRI of his back because of BNSF’s assumption that he had a back impairment. “No further causation inquiry is necessary.”

Qualified. As to whether the applicant was a qualified individual under the ADA, the fact that BNSF did not contest this element was telling, said the court, noting that this was not a case where the medical information previously adduced had been disqualifying and BNSF had provided him one last chance to show his ability to perform the job. Rather, despite ample evidence he could do the job, BNSF decided to impose the burden of procuring an expensive medical test on the applicant because of its perception that he had an underlying back problem.

Injunction. In granting the injunction, the lower court had found that because the ADA authorizes any person who proves an ADA violation to seek the remedies provided for in Title VII, it did not need to look at the four-factor test for injunctive relief: (1) whether a plaintiff has suffered an irreparable injury, (2) whether remedies available at law are inadequate to compensate for that inquiry, (3) the balance of hardships, and (4) the public interest—before issuing a permanent injunction. Declining to decide whether application of the test is required in the Title VII/ADA context, the Ninth Circuit found that it would be satisfied here. Although the injunction was appropriately entered, because the district court did not make factual findings or articulate its reasoning, the appeals court could not properly review the injunction’s scope. Thus it vacated the injunction and remanded for further factual findings.



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