Deny employment
Thu, 11/03/2011 - 3:37pm
While performing a post-offer test, I had an applicant disclose to me that he was denied employment by another company due to his scoliosis. He continued to tell me that the person performing the pre-hire testing was a chiropractor and the chiropractor did not have him perform any type of physical demands testing. He just "looked" him over and found a scoliosis, reported back to the employer that his recommendation was not to hire this applicant based on a finding of scoliosis. During my post-offer exam, the applicant may have had a mild scoliosis, but it did not prevent him from meeting the requirements of my post-offer testing. The information the applicant disclosed to me was concerning. This does not appear to be legal within the rules/laws for hiring practicies. When this type of scenerio happens, what are my obligations to the applicant knowing that this may have been a violation of his rights? I have tried to get in contact with the employer to discuss the legal components relating to valid post-offer testings and have been unsuccessful in my attempts.
Wed, 11/09/2011 - 11:45am
#2
Wow, this is interesting
Wow, this is interesting Rebekah. I wanted to let you know that I am working on getting a response to you for this. I think I will also share it on our Facebook and LinkedIn pages in case anyone has any thoughts!!
Hello, Here is some initial feedback from a member of our LinkedIn group and from Roy:
"This is in violation of ADA law. If an employer has "concerens" about an applicant's ability to perform job related tasks he should ask the applicant to demonstrate that he can perform those tasks. If that is done the employer must require every other job applicant to do the same. I am not sure why the employer required the applicant to see a "chiroprator" no less- I would have refused. The employer has no rights to an applicants medical records or conditions (HIPPA). Maybe a general physical is required for some heavy duty jobs but what you have described sounds way out of line. I also think I would rely on a 2nd opinion from a physician regarding the diagnosis. This has "violation" of rights written all over it. The employer could receive a $10,000 fine. Now the problem is legally going about it the right way. There are lawyers around that handle this type of thing. Contact the Bar Association in your state and get a referral. Without knowing all details I would think the employer is deserving of some sanctions if only for their own ignorance." - Jane Alford
* * *
"Thanks, Jane! You have enlightened our community!
The fine for a physician in a similar case in Pennsylvania last month was $85,000. Read EEOC v Hussey Copper on our web site. This case will be one of two or three I will use in our January webinar.
And you are right about the employer being fined also: the physician in this case is an "agent" of the employer. The law if very clear about agency relationship: one cannot hide their discriminatory practices behind the hollow shield of an agency relationship. Read EEOC web site guidance on employment agencies."- Roy
Hope this was helpful to you!
Regards,
Jenn