Today’s blog entry talks about a published decision from the Third Circuit that came down on March 3, 2021. It deals with what happens when a physical or mental exam after a conditional job offer is done in an ADA noncompliant way. The case of the day is Gibbs v. City of Pittsburgh, which can be found here184196206203. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning plaintiff stated a claim for disability discrimination; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Gibbs applied to be a Pittsburgh policeman. He passed the written test with flying colors and got a conditional job offer. After that, he had to be personally examined by a Pennsylvania licensed psychologist and found to be psychologically capable of exercising appropriate judgment or restraint in performing the duties of a police officer. Two of the psychologists who interviewed him said he was unfit to serve. So, he never got the final offer.

Gibbs filed suit and alleged that the psychologists were biased because they reflectively rejected him after learning of his ADHD diagnosis. They never explored whether his ADHD would interfere with his job. If they had, they would have learned that his ADHD was under control. Further, five other Police Department found him mentally fit and had hired him. He also had never misbehaved as a police officer or as a Marine. While he did misbehave as a child that was before he was treated for ADHD. Finally, Gibbs alleged that Pittsburgh had hired other applicants with similar childhood issues not caused by ADHD. The City of Pittsburgh filed a motion to dismiss, which was granted, and Gibbs appealed to the Third Circuit.

II

Court’s Reasoning Stating that Plaintiff Stated a Claim for Disability Discrimination

1. Proving up a disability discrimination case under the ADA or the Rehabilitation Act involves showing: 1) plaintiff is a person with a disability; 2) plaintiff was qualified for the job; and 3) plaintiff suffered discrimination because of his disability.
2. The ADA protects job applicants if they are regarded as having a disability.
3. In a regarded as situation, the test is whether the employer perceived the employee as impaired regardless of whether that impairment limits or is perceived to limit a major life activity.
4. Even though plaintiff’s ADHD was under control, the psychologists allegedly thought it was a handicap and fixated on that in rejecting him.
5. When a plaintiff claims that job criteria are applied in a discriminatory way, the plaintiff does not need to satisfy the discriminatory criterion in order to bring a discrimination claim. A plaintiff would only have to show that he was qualified based on all the other nondiscriminatory criteria.
6. A previous case saying that psychological tests for police officers was a valid qualification is of no help to the defense because even in that case the court said that there weren’t any facts that would support a claim of bias. Here, plaintiff has alleged bias.
7. Detailed evidence is not necessary in a complaint. All a person has to do is give the defense fair notice of his claim and raise the reasonable expectation that discovery will uncover evidence of discriminatory motive. Plaintiff did exactly that through his allegation that once the psychologists learned he had ADHD, they fixated on his childhood misbehavior without considering whether the ADHD was currently under control. Gibbs also claimed that his ADHD was under control and five other police departments thought so as well. Finally, he claimed that Pittsburgh hired other policemen who had likewise misbehaved as a child but did not have ADHD. So if the allegations are true, a reasonable chance exists that discovery will unearth more of it.
8. The argument that the psychologists were biased and not the city of Pittsburgh so that the city of Pittsburgh gets a free pass does not wash. It doesn’t wash because the ADA prohibits participation in a contractual or other arrangement or relationship that has the effect of subjecting a qualified applicant to discrimination. So, an employer cannot abate its obligations under the ADA by contracting out personnel functions to third parties by way of using preemployment examinations as conclusive proof of an applicant’s mental capabilities. In other words, if the psychologists discriminated against the plaintiff, Pittsburgh is liable for relying on them.
9. The argument that state law mandates a psychological exam and therefore permitted Pittsburgh to screen out the plaintiff doesn’t apply either because an employer may not shield itself from federal antidiscrimination liability just by saying that it was trying to follow state law. In other words, by virtue of the supremacy clause the demands of the federal Rehabilitation Act or the ADA for that matter do not yield to state laws that discriminate against persons with disabilities. In fact, it works the other way around. So, trying to follow Pennsylvania law is not a defense when federal law says to do so would be discriminatory.

III

Thoughts/Takeaways

1. We previously discussed the scheme for disability related inquiries before in our blog, such as here185197207204. Under that scheme, just about anything goes with respect to medical exams after a conditional job offer. Even so, you can’t reject that person with the information received during the course of that physical or mental exam unless you can show that the information received is job-related, consistent with business necessity, and the person could not perform the essential functions of the job with or without reasonable accommodations.
2. Stereotyping disabilities, even by psychologists, is a dangerous game because it may lead to justifiable regarded as claims.
3. For regarded as claims, a plaintiff does not have to show that the employer perceived a substantial limitation on a major life activity. All they have to show is that the employer regarded them as having a physical or mental impairment.
4. In essence, what happened here was a “fitness for duty,” exam. For ADA compliance purposes, the question here is whether the person can perform the essential functions of the job with or without reasonable accommodations and whether the person is a direct threat. Since this is an employment situation, the question is whether the person would be a direct threat to self or to others. Remember, direct threat is a high standard as we have discussed numerous times in our blog, such as here186198208205. In particular, under Chevron v. Echazabal, and is echoed in the implementing regulations of title I, title II, and title III of the ADA, a direct threat finding must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. It also must be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.
5. The context of the medical exam matters because, unlike title I, under title II and title III final implementing regulations put out by the DOJ, the DOJ concept of direct threat only applies to direct threat to others and not to self.
6. A city does not escape liability just because it contracts out with others to perform work and the contractors act in a discriminatory way. In other words, the ADA is a nondelegable duty as we have discussed in this blog entry187199209206.
7. Whenever you plead an ADA case or Rehabilitation Act case, it is a good idea to allege sufficient facts to put the defendant on notice as to what is going on. With Iqbal and Twombly, relying on notice pleading is never a good idea when it comes to ADA and Rehabilitation Act claims because disabilities are so fact specific.
8. Just because state law allows for certain procedures does not mean that those procedures get to be carried out in a way that federal law says it discriminatory.
9. A plaintiff does not have to satisfy job criteria that are applied in a discriminatory way.
10. The case has implications whenever “fitness for duty,” exams occur. Those types of exam do not always occur in the employment process, such as discussed here188200210207.
11. Comparatives rarely come into play in disability discrimination cases. However, it was a nice touch here to allege differential treatment those misbehaving as kids without an ADHD diagnosis v. his behavior with an ADHD diagnosis because it shows that the job criteria screened out people with disabilities.
12. Lots of training needs to be done with the people engaged in “fitness for duty,” exams regardless of whether they are occurring in the employment context or outside of the employment context. In the employment context, the issue is whether the person can perform the essential functions of the job with or without reasonable accommodations without being a direct threat to self or others. If it is being done in the title II context, the issue is whether the individual meets the essential eligibility requirements of the program, services, or activities of the public entity with or without reasonable modifications and without being a direct threat to others. The people performing the medical exam do not get to engage in discrimination on the basis of disability while performing the medical exam.
13. “Because of,” causation now has a different meaning per Bostock, which we discussed here189201211208.
14. “Handicapped,” has been out for over 30 years. You want to use “person with a disability,” or “disabled.” I always start with people first and then change to identity first depending upon the individual’s personal preference.
15. There are a couple of other ADA claims that could be made here. First, under the title II final implementing regulations, 28 C.F.R. §35.130(b)(1)(v),190202212209 the City is prohibited from perpetuating or aiding discrimination by providing significant assistance to anyone discriminating on the basis of disability. Second, one wonders if a title III claim is not available against the psychologists that regarded him as having a disability prevented him from being a police person when they did not explore whether his disability was under control, whether he was qualified, or whether he was a direct threat to self or others.