The case is EEOC v. Grane Healthcare Company, which has three iterations, all at the district court level.  These include an initial ruling on March 15, 2013 [2013 U.S. Dist. LEXIS 35869], and two rulings on July 7, 2014 [2014 U.S. Dist. LEXIS 28477 & 2014 U.S. Dist. LEXIS 91544].  The case involves a bunch of technical motions and re-motions and motions for rehearing, etc., and is probably not over.  For those interested in all the details, I recommend reading the 3/15/13 ruling and either of the 7/7/14 rulings (one being basically a restatement of the other).   There’s no doubt that Grane violated the ADA by administering medical exams prior to any job offers.  The interesting thing is Grane’s argument that most of those examined were hired, and therefore, suffered no injuries.

The facts are that Grane subjected more than 300 applicants to the medical exams, out of which only 26 were not hired.  In the 2013 ruling, Judge Kim R. Gibson of the District Court for the Western District of Pennsylvania granted an injunction to the EEOC to stop the practice.  The 2014 rulings were based on Grane’s assertion that the EEOC sought relief for both successful and unsuccessful applicants and Grane moved for partial reconsideration arguing that only the non-hired applicants experienced an injury.

The basis for Grane’s motion is a 2001 3rd Circuit ruling in Tice v. Centre Area Transportation Authority (CATA)[247 F.3d 506] in which the plaintiff argued, among other things, that his medical records were not properly safeguarded.  The CATA conceded that confidential medical records were improperly comingled with nonconfidential files.  However, summary judgment favoring CATA was upheld on grounds that Tice failed to establish that he suffered any injury as a result of the comingling.  Grane used the same argument with respect to the illegal pre-employment medical exams administered to those that were hired --- they suffered no injury.

Not surprisingly, Judge Gibson rejected the motion.  Commenting on the Tice ruling, Judge Gibson emphasized that there was no definition of “injury” in that case; therefore the loss of a job opportunity is not the only one subject to remedy under the ADA.  Or In Judge Gibson’s words:

 [T]he Third Circuit emphasized that it was not defining the "injury" that a plaintiff must suffer to maintain a cognizable claim under ß 12112(d). Because the Third Circuit declined to specify the type of injury that was needed to implicate one's rights under the ADA, this Court cannot accept the Defendants' assertion that Tice recognizes the loss of a job opportunity as the only injury that is capable of remedy under Title I.

She further ruled that the EEOC established “numerous statutory violations” sufficient for injunctive relief, and that it is possible under such circumstances that Grane could be subject to punitive damages for engaging in ”a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual."

It is not clear what the additional remedies will be for the 26 non-hires … the case is not over.  But certainly, the possibilities include back pay, compensatory damages for pain and suffering, and punitive damages for acting with “malice or with reckless indifference” to the law.  It is also unclear at this time if the EEOC will ask for punitive damages for those that were hired; it did not do so in either of the July 7, 2014 rulings.

The moral of the story is that the pre-employment proscription against medical inquiries is sacrosanct, regardless of whether any injuries can be demonstrated.

By Art Gutman, Ph.D., Professor, Florida Institute of Technology

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