In an October 29, 1998 ruling, the Tenth Circuit Court of Appeals let stand a non-disabled job applicant’s lawsuit against a prospective employer under the ADA based on two medical history questions in the employer’s job application. The Court ruled that the questions violated the ADA, and that the applicant had a claim against the employer because he could show some injury as a result of the two questions on the application.

The applicant was applying for a position as a grinder operator. He completed the company’s application. The application included two questions about his medical history and physical condition. The first asked: “Have you received worker’s compensation or disability income payments? If yes, please describe.” The second asked: “Have you physical defects which preclude you from performing certain jobs? If yes, please explain.” The applicant testified that when he delivered the completed application to the company, he was told he was the best-qualified applicant for the position. Nevertheless, he was not hired. The reason, he was told, was his lack of two years’ grinding experience.

The applicant sued the company, claiming the company’s application violated the ADA. The ADA requires that an employer “shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.” The law also provides, however, that an employer may make pre-employment inquiries into the “ability of an applicant to perform job-related functions.”

The applicant argued that these provisions pertain to all applicants, disabled or not. The Tenth Circuit agreed, concluding that a claimant need not prove he is disabled to assert a cause of action against a prospective employer under the subject provisions of the ADA. The court also ruled, however, that in order to maintain a claim against the prospective employer the applicant must be able to demonstrate an injury caused by the impermissible medical inquiries. In the subject case, the court concluded that the applicant’s injury was not being hired, for which he was seeking monetary damages and injunctive relief.

The court’s ruling broadens prevailing ADA law, and because Oklahoma is within the Tenth Circuit’s jurisdiction, it is particularly important to Oklahoma employers. Actively considering the propriety of the questions contained in your job applications and eliminating those that are impermissible under the ADA, is an important first step in managing the risk attendant to the employer-employee relationship.

Steven K. Metcalf

This Newsletter addresses recent items of interest in various areas pertaining to the construction industry. While the Newsletter may alert you to potential problems or changes in the law, it does not attempt to offer solutions, opinions, or advice concerning specific problems. Such legal advice or opinion can only be given by an attorney after careful consideration of the facts unique to a given situation. Inquiries concerning this Newsletter or its subject matter should be directed to its contributors, Steven K. Metcalf, Esq. at (918) 430-3703 or William H. Spitler, Esq. at (918) 430-3704.

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