California Attorney General Slams Pre-Employment Medical Screening as Discriminatory

In a federal appeal involving a class action lawsuit alleging discriminatory medical inquiries and exams as a condition of hiring, the California attorney general has filed an amicus brief decrying these practices and outlining the state’s robust anti-discrimination laws. The AG also noted the possible repercussions – particularly for those with disabilities – if a lower court’s ruling is allowed to apply to all Californians.

The lawsuit, pending in the U.S. Court of Appeals for the Ninth Circuit, alleges that a health care company – one of the biggest providers of occupational health services in the country – unlawfully required applicants to to answer “highly intrusive, non-job-related and discriminatory” questions about their health. These reportedly have included information on prospective applicants’ hair loss, menstrual issues, sexually-transmitted diseases, mental illness, HIV, hemorrhoids and disability status.

Such inquiries, state Attorney General Rob Bonta asserts, run contrary to the California Fair Employment and Housing Act (FEHA) and underscore how potentially harmful pre-employment screenings can be.

The lawsuit, Raines v. U.S. Healthworks Medical Group, centers around an employer’s contract with a corporate third-party agent responsible for pre-employment screening. Plaintiffs allege that when they refused to answer certain questions, such as one relating to menstruation, offers of employment were revoked.

What the lower court held was that the corporate third-party that conducted the screening could not be held liable under FEHA, something with which the attorney general disagreed. In his amicus brief to the Ninth Circuit (which covers California, Arizona, Washington, Oregon, Idaho, Montana, Nevada and Hawaii), Bonta asserted that this was an erroneous interpretation of the law. It would, he stated, allow agents of employers to sidestep liability for their own unlawful hiring practices by simply pointing the finger back at the employer and saying they were essentially just “following orders.”

Beyond that, as our Orange County employment discrimination lawyers can explain, FEHA contains statutory language that allows third-party agents to be held liable. The legislative history of the law has set a precedent of holding agents like these accountable for violations of employment discrimination in hiring practices. Even if there are exemptions for certain individual supervisors, it doesn’t exempt third-party agents from any liability whatsoever under FEHA.

Protections Against Discriminatory Pre-Employment Medical Questions and Exams

The whole purpose of FEHA is to shield workers against discriminatory practices – and that includes invasive, pre-employment questionnaires and examinations.

The federal Americans with Disabilities Act (ADA) imposes some restrictions on employers when it comes to medical inquiries and exams and identification of disabilities. According to the U.S. Equal Employment Opportunity Commission (EEOC), some things employers cannot ask an applicant include:

• Whether he or she has a disability (or the nature of an obvious disability).
• Medical questions.
• Submit to a medical exam prior to making a job offer.

Employers are allowed to ask applicants whether they can perform the job or how they would perform it. If the applicant has been offered a job, the employer can conditionalize the offer on responses to certain medical questions or passing certain medical exams – but only if all new employees in the same job must answer the same question or take the same exam.

Once a person is hired and has begun working, medical questions/exams may generally only be initiated if the employer requires some medical documentation that would support an employee’s request for an accommodation OR if the employer has some reason to think the employee wouldn’t be able to safely and successfully perform their job due to a medical condition.

Employers are required to keep all medical information and records confidential and separated into their own files, apart from other employment records.