Today the Sixth Circuit Court of Appeals (which decides federal law issues for several states, including Tennessee) issued a somewhat interesting disability discrimination decision. The decision doesn't cut new legal ground but serves as a reminder that employers should make sure interviewers are properly trained about asking disability related questions.
The lawsuit was brought anonymously so the decision is called Doe v. Salvation Army. The plaintiff was being interviewed for a truck driver position. During the interview, he said he could not work on Fridays because he had to see his doctor and pickup his medicine. The interviewer asked "what kind of medicine" and was told "psychotropic medicine." The interview then ended (abruptly, the decision implies) with the interviewer saying their insurance wouldn't cover the applicant (exactly what was said was disputed). The applicant was not hired and brought suit claiming disability discrimination under the Rehabilitation Act (the federal grantor equivalent of the Americans with DIsabilities Act).
After determining the applicant had a "disability" within the meaning of the statute, the court held the questions during the interview were improper. Sure, the Salvation Army had a legitimate interest in having truck drivers be safe, but during a job interview, asking about the types of medications the applicant was taking was not the way to address that concern. That question alone led the court to require a jury trial because it showed the interviewer had a preconceived notion about people who take psychotropic drugs and wasn't going to take a chance in hiring one of them. The court was not discounting the employer's legitimate need for safe drivers nor was the court saying the employer had to hire someone who couldn't work on Fridays (though that might have been required as a reasonable accommodation).
The ADA (and related statutes) give employers a several opportunities to determine whether an applicant or employee can safely perform a job. In this instance, the better course would have been to not ask at all about the medication but instead say, is this medication something would interfere with your ability to drive a truck. Any employer who employees drivers on the jbo has a legitimate reason in seeing that its drivers are safe operators. Employers can, if uniformly done, make conditional job offers and then conduct medical exams to see whether the applicant has any condition that would be reasonably likely to prevent the safe operation of a vehicle. Remember that there are limits on what can be asked (or used) during these medical examinations and on how the employer uses the information.
Two lessons: before conducting interviews, train your interviewers on the "do's and don'ts", give them refreshers if they don't do interviews that often, and keep a record of that training.
What really tripped up this employer, in the court's mind, was the stereotyped view the interviewer held about someone who takes psychotropic drugs. It is far, far better for an employer to conduct a valid post-offer medical exam and base a decision on whether applicant's (or employee's) actual traits/limitations preclude the employee from doing the job. Several cases (here is one) have essentially ruled that as long as the medical evaluation and the employer's reliance on it is not unfrounded, the courts will not find the employer had a stereotyped view of the applicant's (or employee's) disabilities.
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