By: Aaron Gelb
Hiring practices, by their nature, have the potential to impact large groups of individuals. Employers using certain screening tools such as pre-employment tests and medical questionnaires may thus find themselves having to defend their policies and procedures in litigation brought by the US Equal Employment Opportunity Commission (“EEOC”). Last year, the EEOC announced in its Strategic Enforcement Plan (“SEP”) for Fiscal Years 2017 – 2021 that it will continue to focus on “class-based recruitment and hiring practices that discriminate against racial, ethnic, and religious groups, older workers, women, and people with disabilities.” Since issuing the SEP, the agency has filed a number of lawsuits across the country against employers accused of creating barriers to employment for individuals with disabilities. These cases serve as important reminders that even the most well-intentioned employers should take a close look at the tools they are using to screen applicants for the various positions they are attempting to fill or run the risk of squaring off against the EEOC.
Two recently filed lawsuits highlight the perils associated with pre-employment drug testing and/or asking applicants about their prescription drug usage.
In EEOC v. M.G. Oil Co. d/b/a Happy Jack’s Casino, 4:16-cv-04131-KES (D. S.D.), the agency accused the defendant of discriminating against an applicant for a cashier position by revoking her conditional employment offer after learning she received a non-negative drug screen result. M.G. Oil promptly filed a third-party complaint seeking indemnity and contribution from TestPoint Paramedical, LLC, the company which administered the drug test. M.G. Oil accused TestPoint of failing to send the test results to a medical review officer to determine if there was a valid reason for the non-negative result. M.G. Oil’s gamble failed as the court dismissed the claims against TestPoint, leaving M.G. Oil to explain why it refused to reconsider its decision to revoke the applicant’s offer after she explained the non-negative drug test result was due to her lawful use of a prescription pain killer she took for back pain. The EEOC also accused M.G. Oil of violating the ADA by requiring all employees to report both prescription and non-prescription medications they are taking. Eventually, the Company entered a consent decree settling the lawsuit, agreeing to pay $45,000 and adopt company-wide policies to prevent future hiring issues under the ADA. The company also agreed to only require employees to report prescription and non-prescription medications that may affect their performance. Continue reading