An increasing part of my practice over the last few years has been working with licensing counsel on issues related to what we discussed in this blog entry. This week’s blog entry deals with a case very much in that subject area. The case of the week is Equal Employment Opportunity Commission v. Yale New Haven Hospital Inc. decided by the United States District Court for the District of Connecticut on October 23, 2026, here (Lexis, subscription required. I could not find it on the free Internet as of the time of this writing). This is one of those cases where plaintiff gets by summary judgment but one has to wonder if persons with disabilities really win in light of how the court reasoned a trial was necessary. A bit unusual in that both the plaintiff and the defendant filed cross motions for summary judgment, and the court winds up denying both motions. For variety of reasons, it is the defendants that usually file the summary judgment motion, and the plaintiff tries to fight off that motion but does not file a cross motion for summary judgment. As usual, the blog entry is divided into categories and they are: facts; why the EEOC’s ADEA claims must go to trial; why the EEOC’s ADA claims must go to trial; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

The EEOC brought a class action suit against Yale New Haven Hospital alleging that it’s Late Career Practitioner Policy, which screens certain physician for signs of mental or cognitive decline, is discriminatory under the Age Discrimination In Employment Act (ADEA), and is also an unlawful employment practice under the ADA.

The Late Career Practitioner Policy requires physicians and other practitioners age 70 and older wishing to obtain or renew clinical privileges to undergo ophthalmic and neuropsychological testing prior to their appointment or reappointment. It applies to all practitioners and staff required to have clinical medical privileges. It also only applies at the time of the practitioner’s initial appointment and every two years after that during their reappointment. In particular, the policy requires the following procedures:

1. Based upon the Member’s date of birth, the Medical Staff Administration will identify practitioners who are subject to the terms of this Policy.
2. Applicants for initial appointment who are age seventy (70) at the time their application is submitted, or anticipated to reach the age of seventy (70) prior to completion of the application process, will be informed of this Policy and its requirements by the Credentialing Specialist who is processing the application.
3. Upon reaching the age of seventy (70), Members shall be required to fulfill the requirements listed above [(the ophthalmic and neuropsychological tests)] at the time of their next, and all subsequent, re-appointments. They shall be notified of the requirements of this Policy at the time that their application for reappointment is mailed.
4. The Opthalmic evaluation form will be provided to the Member and he/she will be expected to make arrangements for this examination[].
5. The completed ophthalmic examination form, and the results of any supplemental examinations that may be indicated, must be returned by the ophthalmic practitioner who conducts the examination directly to the Medical Staff Administration.
6. Members will schedule their neuropsychologic examination with the individual identified by YNHH. The contact number will be provided by Medical Staff Administration.
7. Practitioners who conduct the examinations noted above are asked to consider the results of the exam relative to the Medical Staff Member[‘s] ability to practice medicine and to identity any issues from the examination that may affect, or have the ability to affect, this ability.
8. Completion of both the neuropsychologic and ophthalmic examinations are required in order for applications for initial or re-appointment to be considered “complete” as defined in the Medical Staff Bylaws.
9. If a practitioner’s test do not result in any significant findings, then no action is taken. However, if the tests reveal signs of alleged impairment, more tests may be recommended, and a decision about the practitioner’s clinical privileges is then made by members of Yale’s Medical Staff after several layers of further review.

I

Why the EEOC’s Age Discrimination in Employment Act (ADEA), Claims Must Go to Trial

1. Under 29 U.S.C. §623(f)(1), it is not unlawful under the ADEA to make age-based employment decisions where age is a bona fide occupational qualification reasonably necessary to the normal operations of the particular business.
2. An employer may invoke the BFOQ exception in one of two scenarios, and the scenario relied upon by Yale is where the employer can establish that age is a legitimate proxy for the safety-related job qualifications by proving it is impossible or highly impractical to deal with older employees on an individualized basis.
3. The case turns on the question of whether a BFOQ exists.
4. The experts in the case are very much split as to the extent to which the Late Career Practitioner Policy has the ability to identify cognitive decline and whether it serves safety-related purposes. There are also questions of fact as to whether age is a legitimate proxy for the safety-related job qualifications measured by the policy.
5. A fundamental factual dispute also exists as to whether the current method for assessing physician competence is adequate to protect against future harm. In other words, is the Late Career Practitioner Policy a solution in search of a problem.
6. Critical factual disputes exist in the details of the Late Career Practitioner Policy, its purpose, its function, its implementation, its efficacy, and its impact.

II

Why the EEOC’s ADA Claims Must Go to Trial

1. 42 U.S.C. §12112(D)(4) provides that a covered entity cannot require a medical examination of an employee unless such examination or inquiry is job-related and consistent with business necessity.
2. With respect to the business necessity requirement, the prohibition against medical examinations does not allow an employer to simply demonstrate that an inquiry is convenient or beneficial to its business. Instead, it has to show that the reason for conducting the examination is vital to its business. See also this blog entry.
3. Business necessity can include ensuring that the workplace is safe.
4. The employer also has to show that the examination genuinely serves the asserted business necessity and that the request is neither broader nor more intrusive than necessary.
5. The employer need not show that the examination is the only way of achieving the business necessity, but the examination must be a reasonably effective method of achieving the employer’s goal.
6. Courts will readily find a business necessity where an employer can demonstrate a medical examination or inquiry is necessary in order to determine whether the employee can perform job-related duties when the employer can identify legitimate, nondiscriminatory reasons to doubt the employee’s capacity to perform his or her duties.
7. In defining a class subject to a general policy, the employer has to show that it reasons are consistent with business necessity for defining the class in the way it does. A court does grant some deference to the employer in determining how to define a class subject to a general policy. The fact that a policy requires medical certification from some individual employees who do not pose a health or security risk does not undermine the policy if the employer has defined the class of employees reasonably.
8. The case turns on the affirmative defense of whether a business necessity exists. Whether a BFOQ (ADEA) or a business necessity (ADA) exist, are fact intensive and cannot be resolved at summary judgment.
9. There are significant factual disputes raised by the experts as to whether Yale’s Late Career Practitioner Policy genuinely serves the business necessity of keeping patients safe.
10. There are also key factual disputes as to whether the Late Career Practitioner Policy is overly broad and not sufficiently tailored to serve business necessity. For example, the policy does not take into account the specific job responsibilities of the practitioners, which can vary significantly, and may therefore, render the policy overly broad in its application.
11. In a footnote, the court noted that the EEOC raised yet another factual dispute about the business necessity of the policy by its allegations that Yale fails to rigorously enforce the policy. For example, the EEOC offered a bunch of examples of practitioners being given extensions and being permitted to practice notwithstanding troubling scores on the test battery. Case law exists that such a practice shows that business necessity is not present. So, these allegations by the EEOC also illustrate the intensely factual nature of the issue, and it is not right for the court to weigh in on summary judgment in such a situation.
12. Whether the policy is sufficiently tailored to a reasonably defined class will at the very least include a quantitative assessment. For example, how many non-treating positions are subject to the policy? Do those non-treating physician impact, indirectly or otherwise, patient care? If so, how? (In a footnote, the court noted that both parties did a lousy job of pointing out the facts in the voluminous discovery that would aid the court in figuring this out. Further, it isn’t the court’s job to go through all that discovery itself, rather per Rule 56(a), it is the responsibility of the parties to point out that information for the court.

III

Thoughts/Takeaways

1. The court recognized that this case could have significant impact across a variety of industries now that it is going to trial. As a result, the court specifically noted that because of the parties inability or unwillingness to work together to devise an appropriate, perhaps even age-based, plan or process that serves the policy’s intended purpose of protecting patient from physicians who may be suffering from cognitive decline, but which is sufficiently tailored to comply with the ADEA and the ADA, is extraordinarily and frustratingly unfortunate.
2. An argument can be made that this is a pyrrhic victory for persons with disabilities. The reason for that is that the ADA makes clear that it isn’t safety that is the issue, rather in the employment context, it is a direct threat to the health and safety of self or others. See 28 C.F.R. §§1630.15(b)(2), 1630.2(r). “Direct threat,” is a critical qualifier on “safety,” and winds up making the “safety,” determination a completely different kettle of fish. Also, many physicians are independent contractors and not employees of the hospital at all. Nevertheless, you can see the same “direct threat,” qualifier on “safety,” in the Title III DOJ final implementing regulations as well at 28 C.F.R. §36.208. See also: Chevron v. Echazabal, here;  ,  Mentkowitz v. Pottstown Memorial Medical Center, which we discussed here.
3. Interesting that 29 C.F.R. §1630.7, which makes it unlawful for an employer to use standards, criteria, or methods of administration that are not job-related and consistent with business necessity,doesn’t get a mention in the opinion.
4. It seems to me that the EEOC has a strong argument that the Yale’s policy is broader and more intrusive than necessary.
5. Per PGA Tour v. Martin, here, the ADA requires an individualized analysis. A blanket policy requiring that everybody over a certain age undergo tests regardless of whether there are any indicators that such a test is necessary appears to violate that principle. See also, §II (6) of this blog entry.
6. Rule 56(a) seems to have not been followed by either party thereby making it impossible for the court to figure out the evidence it needed to come up with a decision granting either summary judgment motion.
7. “Alleged impairment,” in the policy is terribly problematic vis-à-vis the ADA, and one of the prongs of a disability is regarding a person is having a physical or mental impairment. For that matter, the ADA also covers a person with a record of an impairment as well. See 42 U.S.C. §12102(1).
8. This case would seem to be a classic disparate impact case, but yet that phrase and analysis never appears in the decision. That is probably because the EEOC has backed off on disparate impact litigation.
9. Since the impact of this case is so high, one wonders if this case isn’t going to settle. Even if it does settle, the terms of that settlement may have wide ranging impact as well. Definitely a case worth following, and I am going to do precisely that.