Employers who are using medical history to make hiring decision—watch out, warns Michael Arnold of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. “Two recent victories for the [U.S. Equal Employment Opportunity Commission] should remind employers that rejecting a job applicant over a medical condition, even when the condition appears directly related to job performance, can expose the employer to serious legal consequences under the Americans with Disabilities Act,” he says.
In the first case, the EEOC claimed an employer violated the ADA after reversing a hiring decision once it learned the applicant had prostate cancer. The case was settled before any facts were proved in court. But the deposition testimony showed the company’s owner making derogatory remarks about the prospective employee ending up in diapers because of the condition, according to Arnold. “The owner’s ignorance of the law resulted in the same type of EEOC scrutiny and unwelcome litigation that a poorly administered screening and testing program might have caused,” he said.
