Here’s a case that might make some employees think twice about going to the EEOC with a failure-to-hire complaint.
A court has ruled that employers being sued by the EEOC have the right to review job applicants’ medical records—including mental health notes.
Recent case: Elizabeth Saunders applied for a job at New Hanover Regional Medical Center but wasn’t hired because she took a legally prescribed narcotic. The EEOC sued on behalf of Saunders and other similarly situated employees, contending that automatically screening out such applicants is disability discrimination that violates the ADA.
In the lawsuit pleadings, the EEOC alleged that the applicants suffered emotional damage because they weren’t hired.
The hospital then moved to subpoena the medical records for each of the named applicants, ostensibly to see whether they had actually suffered emotional damage—and perhaps to determine whether they were already suffering from psychological problems before they applied for jobs.
The court said the records should be turned over to the hospital, even though technically Saunders isn’t a party to the lawsuit. The court concluded that the EEOC was merely acting in its role as the champion of the disabled when it sued. (EEOC v. New Hanover Regional Medical Center, No. 7:09-CV-00085, ED NC, 2010)
Final note: Does your organization ban all applicants who use legal narcotics? You may be discriminating against people with legitimate disabilities.
You need a solid, job-related reason for such a sweeping rule. Jobs that require the use of heavy equipment or dangerous chemicals may not be appropriate for narcotic prescription users, but other jobs that don’t require excellent motor skills may be entirely appropriate.
Check with your attorney to see if there are less restrictive ways to ensure a safe workplace.
- Protect against bias allegations: Involve hiring manager in any termination decision
- Tell staff you're monitoring work e-mail so they can't argue it was confidential
- Employers—Not employees—Choose ADA accommodation
- Make sure your investigations are thorough
- Focus on concrete qualifications in hiring, not esoteric 'chemistry'