EEOC v. BNSF Ry. Co., No. 16-35457 (9th Cir. Aug. 29, 2018)

| Aug 29, 2018 | Daily Developments in EEO Law |

May an employer charge a job applicant for the cost of a post-offer medical review, when the employer believes that the applicant has a medical impairment? The Ninth Circuit holds “no” under the ADA, affirming a judgment on behalf of an employee who was asked to pay for his own MRI.

EEOC v. BNSF Ry. Co., No. 16-35457 (9th Cir. Aug. 29, 2018): “Russell Holt received a conditional job offer from BNSF Railway Company (‘BNSF’) for the position of Senior Patrol Officer, contingent on Holt’s satisfactory completion of a post-offer medical review. During that medical review, Holt disclosed that he had injured his back four years before, suffering a two-level spinal disc extrusion.”

While he was medically cleared for service by his doctor and the company’s medical subcontractor, BNSF nevertheless required Holt to pay for an MRI of his back to accept the offer. BNSF’s Medical Officer, Dr. Jarrard, “stated that he wanted this information because-although Holt reported no current symptoms and all the reviewing doctors had agreed that he could perform the job-Dr. Jarrard was concerned that there was an underlying pathology that might disqualify Holt from the job.” Holt reportedly could not afford the test, which would have cost more than $2,500, and lost the job.

The district court granted summary judgment to the EEOC on a claim that the employer committed “regarded-as” discrimination.

“It determined that the EEOC had established all three elements of a prima facie case for disability discrimination under § 12112(a): The EEOC had shown that (1) BNSF had ‘regarded’ Holt as having a disability due to his 2007 back injury; (2) Holt was qualified for the job; and (3) BNSF discriminated against Holt by requiring an MRI because BNSF regarded Holt as having a disability.”

The court determined that BNSF offered no evidence in support of an affirmative defense, and thus entered a judgment fot the EEOC. It entered an agreed-upon damages figure and issued a nationwide injunction against BNSF’s post-offer hiring practices.

The Ninth Circuit affirms the judgment, thought it remands the injunction for more findings.

The panel first notes that the 2008 amendments to the ADA, the ADAAA, “discarded the requirement that an impairment had to substantially limit a major life activity for the discrimination to be actionable under the ‘regarded as’ prong.” This amendment proves significant here, because it was BNSF’s perception of an impairment that triggered the violation. Thus it was only necessary to show that the actual or perceived impairment was current and not “transitory or minor.”

Here, regardless of any alleged uncertainty about Holt’s condition, BNSF “request[ed] an MRI because of Holt’s prior back issues and condition[ed] his job offer on the completion of the MRI at his own cost,” and “assumed that Holt had a ‘back condition’ that disqualified him from the job unless Holt could disprove that proposition.” Thus, “BNSF chose to perceive Holt as having an impairment at the time it asked for the MRI and at the time it revoked his job offer.” (BNSF did not contest that Holt was a “qualified individual.”)

The panel then holds that the EEOC engaged in discrimination by “condition[ing] Holt’s continuation through the hiring process on Holt providing an MRI at his own cost.” BNSF argued that that ADA § 12112(d)(3) allows the employer to “require a medical examination after an offer of employment.” But the panel notes that this section requires “all entering employees [to be] subjected to such an examination regardless of disability.” ADA § 12112(d)(3)(A).

Here, BNSF applied a special requirement only to Holt because of his perceived impairment:

“An employer would not run afoul of § 12112(a) if it required that everyone to whom it conditionally extended an employment offer obtain an MRI at their own expense … Where, however, an employer requests an MRI at the applicant’s cost only from persons with a perceived or actual impairment or disability, the employer is imposing an additional financial burden on a person with a disability because of that person’s disability.”

The panel also notes that the ADA generally requires the employer to assume reasonable costs of accommodating disabilities, and that “[p]utting the burden to pay on employers helps to ensure that employers do not abuse their power to require testing at the post-offer, pre-employment stage.”

To underscore, the holding is not limited to the “indisputably high cost of MRIs” or Holt’s inability to pay, but applies to all cost-shifting: “our holding here applies regardless of the cost of the medical test at issue, as well as the employee’s ability to pay.”

While BNSF tried arguing that there was no evidence of anti-disability animus or motive, the panel observes that such proof is unnecessary: “where it is clear that an action was taken because of an impairment or perception of an impairment, no further inquiry or burden-shifting protocol is necessary to establish causation.”

Finally, the panel remands the case for further findings on the injunctive relief. The panel observes that it is unnecessary for a court entering an injunction under the ADA to make findings under the conventional four-factor test. It even notes that a nationwide injunction might be justified under this case, where “Holt lived in Arkansas at the time of his application, applied for a position in Washington, and was rejected at the direction of employees in BNSF’s Texas office.” But because the district court failed to make findings or articulate its reasoning, the panel was unable to review the injunction.

tell us about your case


our office locations

Outten & Golden LLP
685 Third Avenue, 25th Floor  
New York, NY 10017  
Phone: 212-245-1000
Map and Directions

Outten & Golden LLP
One California Street, 12th Floor
San Francisco, CA 94111
Map and Directions

Outten & Golden LLP
601 Massachussetts Avenue NW
Second Floor West Suite 200W
Washington, DC 20001
Map and Directions