Part 6: Legal Problems with Pre-Employment Evaluations

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Guest Post by Jessica Ross.

There has been a lot of back and forth about how the mission must take care during prefield screening not to run afoul of the ADA. I agree. Under the ADA, before you can give an applicant a “medical examination,” which includes most psychological screenings, you have to first consider all the non-medical information and hand out a conditional offer. And the order in which you do this really matters. The EEOC goes so far as to say that “An employer may not ask disability-related questions or require a medical examination, even if the employer intends to shield itself from the answers to the questions or the results of the examination until the post-offer stage.”¹

Getting the offer/assessment order wrong can get you in big trouble. The following case is a good example.² An airline interviewed three potential applicants to be flight attendants and issued conditional offers of employment, contingent upon them passing both a background check and medical examinations. Before it conducted the background check, the airline immediately sent the applicants to its on-site medical department for examinations. As it turned out, these three applicants were HIV-positive, but failed to disclose this status on the medical forms. The airline’s medical department discovered the fact and reported to the airline’s recruiting department that the applicants had “failed to disclose” information during the exam. The recruiting department rescinded their offers, claiming that the reason was the failure to disclose information during the medical examination.

The applicants sued the airline, claiming violations of the ADA. The airline argued that it had not violated the ADA because it did the medical examination after the conditional offer. First, the court explained that the ADA requires that conditional offers be “real” before a medical examination. “A job offer is real if the employer has evaluated all relevant non-medical information which it reasonably could have obtained and analyzed prior to giving the offer.”³ Here, because the airline hadn’t done the background check first, the conditional offers it handed out were not “real” offers and doing the medical examinations violated the ADA.

The airline argued that even if it may have done the medical examination out of order, it did not consider the results until after the fact. This argument failed as well. Simply because the decision-maker is shielded from the information does not give an employer a defense to this kind of claim. Whether or not the airline looked at the information, it was not entitled to have it until after a real offer had been made. The court made clear that the ADA regulates the sequence in which employers collect information, not the order in which they evaluate it. ADA lawsuits like this can easily cost an organization hundreds of thousands of dollars in legal fees and costs alone—not to mention what it ultimately has to pay to the plaintiff.

So how can you avoid running into a similar sticky situation? If you want your hiring procedure to be in compliance with the ADA, (and you want to do psychological screening), it must be set up as a two stage process. No exceptions.

1. First Stage: Pre-Offer. In the first stage—the pre-offer stage—the employer must evaluate all the non-medical information. This would include background checks, traditional interviews, checking references, and asking about the applicant’s ability to do the job with or without reasonable accommodation, etc. (but not disability-related questions). If the applicant passes that stage, then a “real” offer can be made. The offer can be conditioned on the successful completion of a psychological screening.

2. Second Stage: Post-Offer. In the post-offer stage, the mission can conduct the psychological evaluation.

This structure is not only required by the ADA, but it can also help put the mission in a stronger position to fend off claims of disability discrimination. If possible, it is better to clearly screen out unqualified candidates based on non-medical criteria (such as failure to meet spiritual qualifications). Sometimes this is not possible. If disqualification after the medical evaluation seems warranted, consider these questions before rescinding the offer:

• Can the disability be accommodated without an undue hardship to the mission? Theresa and Brent have discussed this requirement in detail in other posts.
• Is the screening designed to screen out people with disabilities? This can get you in trouble with the EEOC as well.
• Is the criteria used to screen out candidates after the medical examination “job-related and consistent with business necessity”? In other words, do you have a really good justification why the criteria is necessary to doing the job?

Though it may take more work at first, structuring the prefield screening to focus on “everything-but-psychological-screening” first may ultimately make it easier in the end. The process can protect missions by focusing the hiring decision on non-medical factors (particularly spiritual criteria) and thus, make it easier to defend against an employment discrimination suit. Even where the ministerial exception might ultimately bar liability, having a procedure in line with the ADA makes it even less likely these lawsuits will be pursued in the first place.

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¹ ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (1999) at 2.

² Leonel v. Am. Airlines, 400 F.3d 702 (9th Cir. 2005).

³ Id. at 708.

Disclaimer: not official legal or psychological advice or opinion