The blog entry for this week is a follow-up on the blog entry from last week. Last week, I discussed job relatedness and business necessity. This week we discuss medical related inquiries and disability related inquiries in two different cases.  One from the Northern District of Texas and the other from the Fourth Circuit. The case from the Northern District of Texas is Mir v. L-3 Communications Integrated Systems . The case from the Fourth Circuit is Bingman v. Baltimore County. As usual, the blog is divided into categories, and they are: Mir facts; Mir court’s reasoning; Bingman court’s facts; Bingman court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories in the blog entry

I

Mir Facts:

Plaintiff suffered from hip problems throughout his life and had a number of surgeries on his right hip, including multiple hip replacement operations or revisions. In 2005, during his left hip replacement, the sciatic nerve on one side of his hip was crushed causing permanent nerve damage. As a result, plaintiff walks with a pronounced limp and uses a cane to assist him while walking. In 2005, the injury required him to go on long term disability. The long-term disability provider required him to apply for Social Security benefits to offset the long-term disability benefits. He made certain representations on his Social Security Administration application for benefits and was awarded SSA benefits. In 2007, the plaintiff underwent another surgery to correct his hip, and he was physically able to return to work in 2008. In 2011, he applied to work for L-3 Communications at their Greenville, Texas facility. On October 11, 2011, he was contacted by the defendant and an interview was scheduled for October 17 of 2011. The specific job posting for the position was as follows:

Bachelors Degree in Mechanical or Civil Engineering with a minimum of 8 years of experience or Bachelor’s Degree with related experience. The candidate must have a knowledge of manufacturing processes, which include machining, NC programming, sheet metal and assembly. Additional knowledge of HDL Aircraft installation procedures is a plus. He/She should have experience with what constitutes a good engineering design with respect to producibility issues. In additional to these skills, the ability to work simultaneous projects and operate in a dynamic, fast-paced cross-functional environments is required. Strong written and oral communication skills are essential.

On October 17, 2011, a department head at L-3 Communications met the plaintiff at a recruiter’s office and led him to his office, which was located in a separate building to conduct the interview. During the walk to his office, approximately 100 yards away, the department head asked the plaintiff questions regarding his ability to walk. The plaintiff responded that he had a hip replacement surgery, a mistake was made, and his sciatic nerve was crushed. Once the interview started the department head also asked the plaintiff questions regarding the nature and extent of his physical limitations. More specifically, he made inquiries as to his short and long-term prognosis and a timeline of when the injuries occurred. Plaintiff testified that the discussion concerning his injuries lasted approximately 15 minutes. Three weeks later, human resources contacted the plaintiff to inform him that they declined to offer him a position. The plaintiff then filed a complaint with the Office of Federal Contract Compliance Programs, which initially concluded that he had been discriminated against because of his disability, but then issued a revised notification of results stating that there was insufficient evidence to conclude that discrimination occurred because of his disability. OFCCP then issued a notice of to sue, and the plaintiff brought suit in federal court.

II

Mir Court’s Reasoning

1. Claims of disability discrimination can be established by either presenting direct evidence or by using the indirect method of proof set forth in McDonnell-Douglas. The questions asked by the department head were not direct evidence of discrimination under the ADA.
2. Plaintiff was not bound by his statement to the Social Security Administration because those statement regarding his inability to work occurred approximately five years prior to his interview for the position at L-3 communications. He established that he underwent corrective surgery to correct the injury. His statement to the Social Security Administration were consistent with his claim that he could perform the duties of the position with reasonable accommodations. Finally, plaintiff offered sufficient explanation to reconcile his sworn assertion to the Social Security Administration regarding his inability to work with his claim that he was qualified for the position under the ADA. Accordingly, he was not judicially estopped from being a qualified individual under the ADA.
3. Knowledge of HDL aircraft installation procedures was not a necessary minimum qualification under the job posting for the position.
4. The job posting did state that a candidate for the position must have NC programming knowledge and the plaintiff lacked such knowledge.
5. The court could not find any authority requiring a prospective employer to accept a person for a position who does not meet all minimum qualifications. Accordingly, since the plaintiff did not have NC programming knowledge, he was unable to establish a prima facie case of discrimination due to his disability. The court was unpersuaded by plaintiff’s claim that a lack of NC programming knowledge was not a bar to the job because he had more advanced programming knowledge than the NC programming.
6. The ADA provides that an employer shall not conduct a medical examination or make inquiries of the job applicant as to whether such applicant is an individual with a disability or as to the nature or the severity of such a disability. 42 U.S.C. §12112(d)(2)(A). While damages liability must be based on something more than a violation of 42 U.S.C. §12112(d)(2)(A), that doesn’t preclude nominal damages. Accordingly, a genuine dispute of material fact existed with respect to plaintiff’s claim of improper inquiries under the ADA.

III

Bingman Court’s Facts

Plaintiff, formerly employed as a laborer with the Bureau highways of Baltimore County, Maryland, sued Baltimore County alleging he was terminated because of his disability in violation of the ADA. At trial, he received a verdict of $400,000 in damages, of which $298,000 consisted of noneconomic damages. The County argued that the District Court erred when it refused to allow the county to present evidence that the plaintiff applied for and received Social Security Disability Insurance benefits, and when it refused to instruct the jury regarding plaintiff’s obligation to explain the inconsistencies between the disability discrimination claims and his SSDI application. The County also argued that the jury’s noneconomic damages awards were not supported by the evidence.

IV

Bingman Court’s Reasoning

1. With respect to the SSDI filing, the County was allowed to question the plaintiff regarding statements he made in his SSDI proceedings, and the District Court adequately instructed jury regarding its obligations to consider statements the plaintiff made in those proceedings.
2. The facts are undisputed that the County used out of date medical authorizations to obtain plaintiff’s cancer related medical records, and then made unlawful inquiries when it sought and received records regarding plaintiff, rather than limiting their request to the plaintiff’s back injury. As a result of those unlawful inquiries, the County received information about plaintiff’s cancer diagnosis and treatment, which it was not allowed to do.
3. It is also undisputed that the plaintiff was told to undergo a medical examination based solely on speculation that his bones may be brittle because of his cancer treatments.
4. The inquiries and examination were separate acts for which the jury was justified in awarding damages.

V

Takeaways:

1. Whether the bifurcation of direct evidence and indirect method when it comes to the burden of proof has continuing validity is debatable, as discussed in this blog entry.
2. The must read case on judicial estoppel can be found in this blog entry.
3. As mentioned last week, it is critically important that if you are going to make a disability related inquiry or a medical inquiry, the inquiry be narrowly focused to the issue at hand and not be any broader than necessary.
4. If you are curious about an applicant’s disability, keep it to yourself. Remember, curiosity killed the cat. The ADA does allow you to ask an applicant how they might perform the essential functions of the job in light of an obvious or self-disclosed disability, but even so, doing so is very very tricky. Training Training Training (see also ¶ 6 below), is always good.
5. Getting the ADA medical inquiry and disability related inquiry things wrong can lead to substantial liability.
6. With respect to medical inquiries and disability related inquiries, it really helps if people with disabilities (HR personnel with disabilities and/or attorneys with disabilities), are involved in the process of assessing when such medical inquiries and disability related inquiries may take place or have taken place.
7. Make sure your essential job functions in your job descriptions reflect how the job is actually performed.
8. Should you really be interviewing people who don’t meet the essential functions of the job with or without reasonable accommodations? Doesn’t that suggest the function of the job is not essential?