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EEOC sues retailer for alleged misuse of medical exams

Q&A with Nathan Whatley

published in The Oklahoman | October 26, 2017


Nathan Whatley
Nathan Whatley


While federal law does allow employers to make offers of employment to certain job candidates conditional on them passing a medical exam, that right is not without limitations. In a business Q&A with The Oklahoman, labor and employment attorney Nathan Whatley reviewed a recent lawsuit brought by the Equal Employment Opportunity Counsel against a major discount retailer whom the agency alleged had engaged in discriminatory hiring practices resulting from their misuse of medical exams.

In the case, the EEOC claimed that the retailer rescinded job offers to candidates whose post-offer medical exams revealed they had disabilities. The agency further alleged that the exams unlawfully asked about individuals’ family medical histories in violation of the Genetic Information Nondiscrimination Act.

“The ADA limits an employer's ability to make disability-related inquiries or subject individuals to medical exams,” said Whatley. “No such inquiries or exams may be made until an offer of employment is made. Once a conditional offer of employment is made, an employer may make such inquiries or require such exams, provided it does so for all individuals within a job category. If the inquiries or exams screen out an individual because of his or her disability, the employer must demonstrate that the individual was rejected for a reason that is ‘job-related and consistent with business necessity.’”

To avoid allegations of discrimination when hiring, Whatley advises employers to first determine the essential functions of a particular position and then ensure that the medical exam addresses only those functions. In addition, the employer must subject all candidates for a particular position to the same medical exam, and under no circumstances should family medical history be solicited for the purpose of making hiring decisions.