Employers Risk ADA Liability by Relying on Faulty Medical Exams

March 26, 2021, 9:30 AM

Employers can lose disability discrimination lawsuits if they rely on advice from doctors or other specialists that’s revealed to be biased or otherwise flawed, according to a growing list of federal appellate courts.

The U.S. Court of Appeals for the Third Circuit earlier this month revived a police officer’s claims against the city of Pittsburgh for pulling a job offer based on third-party psychologists’ allegedly biased view of his mental fitness. The case will proceed at the trial court level, allowing the cop to develop evidence to support his allegation that the psychologists unfairly interpreted how his attention deficit hyperactivity disorder would affect his job performance.

The First and Sixth circuits have similarly disapproved of excusing employers from Americans with Disabilities Act violations because they banked on bad advice from outside specialists.

The appellate courts’ posture toward expert opinion highlights the obligations the ADA imposes on companies to take a hard look at their evidence before refusing to hire workers with disabilities, fire them, or deny requests to accommodate them.

“It’s natural and normal for employers to want to rely on outside medical testimony,” said Nicole Buonocore Porter, a University of Toledo law professor who’s written extensively on the ADA. “But if a court later determines the testimony was biased, an employer’s good faith reliance on the testimony doesn’t absolve them from liability.”

Expert analysis might be very persuasive in individual ADA cases, yet employers can’t simply assume the expert opinion on its own meets the law’s requirements unless the company does necessary due diligence, Porter said. Courts can be particularly skeptical about recommendations from a doctor that a particular company frequently uses for employment screenings, she said.

Employers should vet specialists’ conclusions by asking for supporting details and consulting with lawyers if they have questions, disability law scholars said.

The U.S. Supreme Court set a high bar for the objective evidence necessary to back reasonable medical conclusions in ADA cases with its 2002 decision in Chevron v Echazabal, according to Peter Blanck, a Syracuse University law professor who’s written books on disability discrimination.

Individual Attention

The ADA is more focused on the individual than other civil rights laws, such as Title VII of the 1964 Civil Rights Act, in part because the same disability can affect workers’ ability to perform their jobs differently, legal scholars said.

The law’s protections for job-qualification tests grew out of discrimination faced by HIV-positive men who had conditional job offers pulled after taking pre-employment medical tests, said Ruth Colker, an Ohio State University law professor and author of a leading ADA treatise.

“The ADA has this great tool requiring proof with medical exams,” Colker said. “It’s a great tool for people who have conditions that aren’t otherwise evident, which is important because so many people have disabilities that are invisible.”

In a case involving an HIV-positive police officer who was denied a job, the Sixth Circuit ruled in 2000 that the city of Chattanooga, Tenn., couldn’t dodge ADA liability by relying on recommendations from a doctor who had made no effort to actually determine whether the cop’s HIV status would affect his job performance.

The Sixth Circuit similarly revived a disability bias lawsuit against a Michigan county that didn’t hire a deaf person who had applied for work as a lifeguard based on a brief, superficial medical exam. The examining doctor, Paul Work, made no effort to determine whether the applicant could perform the job with or without accommodations, the court said in the 2013 ruling.

“Indeed, Dr. Work has no education, training, or experience in assessing the ability of deaf individuals to work as lifeguards,” the court said. “Dr. Work’s cursory medical examination is precisely the type that the ADA was designed to prohibit.”

The First Circuit warned that a “physician’s endorsement does not provide complete insulation” from ADA liability in a 2002 opinion, saying employers can’t contract out legal obligations by using a specialist’s pre-employment examination as conclusive proof.

Following the logic in those rulings, the Third Circuit’s recent decision made clear that Pittsburgh would be liable for disability discrimination if it relied on biased recommendations from outside psychologists.

Denying employers a free pass based on deferring to third-party opinion prevents companies from immunizing themselves from disability discrimination lawsuits by contracting out medical and psychological examinations, said Arizona State University law professor Michael Selmi, who’s written about employment discrimination and civil rights litigation.

Objective Support Over Intent

As with fitness-for-duty determinations, employers can’t follow flawed or biased medical advice to justify not hiring disabled workers on the grounds that they’d pose a “direct threat” to health and safety in the workplace, legal scholars said.

The Supreme Court clarified the requirements in the direct threat context in its 1998 decision in Bragdon v. Abbott, which was a public accommodation case. The court held that a dentist who refused to fill an HIV-positive patient’s cavity needed objective evidence—not just a good faith belief—to determine whether treating the patient posed a direct health threat.

The ADA’s high bar for medical evidence supporting hiring decisions seems to contrast with some elements of Title VII’s rules in job discrimination cases. In particular, the “honest belief rule” can let companies off the hook for allegedly biased employment actions if they offer legitimate reasons based on incorrect information they trusted at the time.

To be sure, employment testing can come under intense scrutiny in Title VII cases, legal scholars said. Whether selection or fitness-for-duty exams are discriminatory has been a major subject of litigation under that statute, they said.

Yet Title VII’s much more intense attention to employer intent compared to the ADA explains why the former has something like the honest belief rule while the latter doesn’t, said Ann McGinley, a University of Nevada, Las Vegas law professor who has written extensively on discrimination law.

“Most of the issues under the ADA don’t have to do with intent,” McGinley said. “They have to do with qualifications, accommodations, and medical exams. A big issue has been whether somebody is even disabled.”

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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