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Monday, June 24, 2013

Loose Lips Double Whammy for Employers


By: Tommy Eden

First Whammy: William Harvel applied for a position with Professional Freezing Services, a Chicago cold storage warehouse, for its warehouse manager position. During the employment hiring process the Company learning during interviews that Harvel had been diagnosed with prostate cancer and refused to go forward with Havel's hire.

Harvel then filed a Charge of Discrimination under the Americans with Disabilities Act (ADA) alleging that the employment opportunity was withdrawn because the company learned of his prostate cancer. On June 5 the EEOC took up his cause and filed suit (EEOC v. Professional Freezing Services) seeking back pay and compensatory and punitive damages for Harvel.

The recent EEOC's strategic enforcement plan lists barriers to hiring and emerging legal issues and on May 15, 2013, updated its informal guidance for employers on how the ADA as Amended (ADAAA) applies to job applicants and employees with cancer in light of the expansion of the definition of a disability under the law. The guidance states that individuals with cancer, diabetes, epilepsy and intellectual disabilities clearly fall under the protection of the ADAAA.

Double Whammy: Fabricut, Inc., the world’s largest distributor of decorative fabrics, on May 7 agreed to pay $50,000 to settle a disability and the first ever genetic information discrimination lawsuit filed by the EEOC. Rhonda Jones worked for Fabricut in a temporary position as a memo clerk for 90 days.

When her temporary assignment was coming to an end, she applied for a permanent job in that position. Fabricut made Jones an offer of permanent employment on Aug. 9, 2011, and sent her to its contract medical examiner for a pre-employment drug test and physical. When Jones reported for her physical, she was required to fill out a questionnaire and disclose the existence of numerous separately listed disorders in her family medical history. The questionnaire asked about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and "mental disorders" in her family. Jones was then subjected to medical testing, from which the examiner concluded that further evaluation was needed to determine whether Jones suffered from carpal tunnel syndrome (CTS). Fabricut rescinded its job offer. The EEOC determined that Fabricut violated the Genetic Information Nondiscrimination Act (GINA) when it asked for her family medical history in its post-offer medical examination.
Common Sense Counsel: Most EEOC Charges and suits are usually the direct result of loose employer lips. Teach your interviewers these risk reduction tips: 1) Don’t Ask Any Family Medical History Questions, or questions about current medical conditions not directly job related, at any time during the hiring process; 2) Using a Third Party Medical Provider to Make Medical History Inquires Will Not Protect You: and 3) EEOC Enforcement Will Put Your Policies in the Spotlight so make sure they are legal.

Tommy Eden is an attorney with Constangy, Brooks & Smith, LLP, member of the ABA Section of Labor and Employment Law, East Alabama SHRM Board of Directors. Tommy can be contacted at teden@constangy.com or 334-246-2901.