Monday, March 14, 2005

9th Circuit Sets a Trap for Employers

To expedite the application process and make it more convenient for flight attendant applicants, American Airlines extended a conditional offer to applicants for flight attendant positions who successfully completed the interview process.  The offer was conditioned on the applicant (1) successfully completing a background check, and (2) successfully completing a medical exam that confirms that the applicant can perform the essential functions of the safety-sensitive position.

So what did American Airlines do wrong?

According to the Ninth Circuit in a March 2005 opinion, (Leonel v. American Airlines, 9th Cir., 3/4/2005) (pdf) an employer must complete all non-medical aspects of the hiring process before it obtains any medical information, or be able to demonstrate why it could not reasonably do so.  Expediting the hiring process or making the process more convenient for the applicant are not, according to this Court, justification for obtaining medical information before a background check is completed.

Although this case was decided at summary judgment stage, and American Airlines will now be allowed to present evidence at trial regarding whether it could (or could not) reasonably have completed the background check before obtaining medical information, employers should re-evaluate their hiring practices.  Employers who require a medical or physical examination—especially those hiring in California, Alaska, Washington, Oregon, Idaho, Montana, Nevada, or Arizona (states included in the Ninth Circuit)—should solicit medical information only after an applicant has successfully completed all other aspects of the screening process, and after that applicant has been issued an offer of employment conditioned solely on successful completion of the medical or physical exam.

One more thing—the Ninth Circuit also found fault with American for not telling its applicants what blood tests would be conducted on their blood samples (a Complete Blood Count.) Although the applicants clearly knew that blood was being drawn, the Court stated that drawing blood without telling the examinee what tests would be performed may be enough to give the examinee a claim for invasion of privacy—at least under California law.