Since the passage of the ADA, employers' ability to ask medically related questions is prohibited until it has made a "real" offer of employment. When American Airlines made job offers conditioned on passage of a background check and a pre-employment physical, but conducted the physical first, the 9th Circuit now says they jumped the gun, reversing summary judgment in their favor. Leonel v. American Airlines, Inc. (9th Cir. 3/4/04) [pdf].
The three plaintiffs were all applicants for flight attendant positions who having passed an initial screening were flown to Dallas for interviews. Following successful interviews each received an offer, "contingent upon your successful completion of a drug test, a medical examination, and a satisfactory background check." After receiving the letter, each was instructed to go immediately to the company's medical department for examinations, which included a detailed medical questionnaire and a blood test. Although warned about the importance of correct answers, none of the three disclosed that they were HIV positive or taking medications.
The blood work of all three showed elevated CBC counts. When contacted for explanation, each disclosed their HIV positive status. Thereafter, the offer of employment was rescinded:
The three plaintiffs were all applicants for flight attendant positions who having passed an initial screening were flown to Dallas for interviews. Following successful interviews each received an offer, "contingent upon your successful completion of a drug test, a medical examination, and a satisfactory background check." After receiving the letter, each was instructed to go immediately to the company's medical department for examinations, which included a detailed medical questionnaire and a blood test. Although warned about the importance of correct answers, none of the three disclosed that they were HIV positive or taking medications.
The blood work of all three showed elevated CBC counts. When contacted for explanation, each disclosed their HIV positive status. Thereafter, the offer of employment was rescinded:
Unfortunately, I have been informed by our Medical Department that you failed to be candid or provide full and correct information. Consequently, I am withdrawing our conditional offer of employment due to your inability to fulfill all conditions.
The letter went on to stress AA's strict compliance with the ADA:
And since it was California, the court also found that there was a possible violation of California privacy laws based on the blood test. Back to the trial court for further proceedings.
Because American Airlines strictly adheres to the requirements of the [ADA], I have not been informed of your particular situation. American Airlines will consider for employment any qualified individual if they can safely perform the essential functions of the job . . . . However, the Company will not tolerate willful omissions of fact on its employment applications . . . .Although the district court apparently agreed with AA's view of its compliance with the ADA, the 9th Circuit was less charitable. Finding that the ADA prohibits medical inquiries until all other contingencies to the job offer have been eliminated, the Court reversed summary judgment for AA. It did not accept AA's argument that its timing in conducting the physicals was excused because it was more convenient for the applicants or that waiting to complete the background check would have disadvantaged it in the competition for employees.
And since it was California, the court also found that there was a possible violation of California privacy laws based on the blood test. Back to the trial court for further proceedings.
Certainly not a good result for AA, but also a concern to any employee who is vulnerable to a charge that an extended job offer is less than "real" because it conditions the offer on anything other than the medical examinations. Given the need for quick action in hiring and the timing of background checks, there may be many companies falling into this trap, if in fact other courts agree it is a proper one.