Hospital's Post-Offer Medical Questions May Violate ADA, Title VII, and Employee Privacy Rights
According to a Michigan federal district court decision, Garlitz v. Alpena Regional Medical Center, a hospital may be liable for violations of the Americans with Disabilities Act (ADA), Title VII, and violation of privacy rights for withdrawing an employment offer to a medical technologist after she refused to answer a post-offer, preemployment questionnaire, directed only to females, about her sexual and reproductive history and plans for pregnancy. The questionnaire at issue was part of a medical screen conducted by a medical clinic retained by the hospital. The decision serves as an important reminder that employers need to be very careful when inquiring into medical or other private matters relating to applicants and employees. The decision also underscores the importance of monitoring third parties that are engaged to assess potential new hires or employees.
Plaintiff Shelly Garlitz applied for a job with Alpena Regional Medical Center, where she had previously worked for 12 years before leaving to complete school and work as a traveling medical technologist. Her performance reviews when she worked for the hospital had generally been positive. When she reapplied for a job she was offered a position subject to completion of a drug test and a medical examination. She was then sent by the hospital to HealthWise Medical Clinic, an independent clinic retained by the hospital to perform preemployment medical examinations. At the clinic, the plaintiff was asked to complete a medical history form that asked questions relating to, among other things, past pregnancies, planned future pregnancies, abortions, miscarriages, and contraception.
The plaintiff refused to answer the questions asserting they were not relevant to a preemployment physical. She was then given a brief examination by a nurse practitioner but told that she would not pass the medical examination if she did not complete all of the questions on the form. After the examination, the nurse practitioner informed the hospital that the plaintiff “had withheld information and I was concerned that she was withholding information about her health.”
The hospital sent the plaintiff a letter stating it was withdrawing its employment offer based on “preemployment guidelines and your denial [sic] to complete the requirements.” The plaintiff sued the hospital claiming that it violated the ADA by asking her questions unrelated to her essential job functions in a preemployment medical examination; discriminated against her on the basis of sex in violation of Title VII because only women were required to respond to questions about sexual activity; and violated her constitutional right to privacy by inquiring into her private sexual life.
The hospital sought summary judgment on all of the claims, asserting that its withdrawal of the offer was solely due to the attitude the plaintiff demonstrated in her interactions with the hospital’s staff and the clinic.
First addressing the ADA claim, the court noted that the ADA prohibits employers from conducting a pre-offer medical examination or making pre-offer inquiries regarding disability status or the nature or severity of a disability. The court also recognized that once an employer has made a “real offer of employment,” the ADA permits an “employment entrance examination” that includes topics unrelated to job functions [though the ultimate employment decision must still be based on whether the employee can perform the essential functions of the job with or without reasonable accommodation]. However, for a job offer to be “real,” the employer must have evaluated all relevant non-medical information that it reasonably could have obtained and analyzed prior to making the offer. In this case, the court concluded, the hospital may not have obtained all reasonably available non-medical information regarding the plaintiff’s attitude before extending the conditional offer. Thus, the court held, there was a question of fact as to whether a “real offer” had been made to the plaintiff and the hospital’s actions violated the ADA.
The court next turned to the Title VII claim. According to the court, the hospital did not contest that the clinic’s form was facially discriminatory. Instead, it argued that hospital was not responsible for the questions posed in the clinic’s form. The court found this argument presented a “closer question,” but nevertheless held that there was a genuine issue of material fact as to whether clinic was the hospital’s agent for purposes of the preemployment screen.
Finally, the court denied summary judgment to the hospital on the plaintiff’s claim for violation of her right to privacy. The court rejected the defendant’s argument that public employers may inquire about an employee’s private sexual life if the inquiry is job related, noting dryly that the hospital failed to explain how its inquiry into the plaintiff’s private sexual life is “related” to the job she applied for.
In sum, although healthcare employers may have special requirements when hiring employees, based on the legitimate needs of the job, it is important to keep in mind the many federal and state laws that apply to the hiring process, selection criteria, and employment decisions.
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