Experienced Attorneys Assisting Businesses Comply with Federal and State Employment Laws
Employers from across the nation, including Washington state, are taking notice of a recent decision by a federal court in Missouri. The decision held that an employer’s online job application, which included a number of health-related questions, was in violation of the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act of 2008 (GINA) [see EEOC v. Grisham Farm Prods., 2016 U.S. Dist. LEXIS 76374 (June 8, 2016)]. The court granted a prospective employee injunctive relief, prohibiting the defendant employer from using the health history form, and also awarded the plaintiff $10,000 in damages.
Applicant Downloaded Application Form
The applicant, a disabled retired law enforcement officer, who had diabetes, sought work with the defendant and downloaded its seven-page online application form. The form contained a three-page health history questionnaire, with 43 detailed questions. Included at the top of the health history form was a notation that all questions must be answered. Among the questions was one that asked if the applicant had consulted a healthcare provider within the past 24 months. The applicant refused to complete the form, contacting the Equal Employment Opportunity Commission (EEOC) instead. The trial court found that the application violated the ADA because it sought medical information at the pre-offer stage. It violated GINA because it requested information about an individual’s current health status that was likely to result in obtaining genetic information.
Liability in Spite of the Fact that Employment Was Not Denied
The federal court’s decision points out that an EEOC violation can occur even where the employer makes no discriminatory decision; the plaintiff here never completed the application and the defendant employer never made an adverse decision with regard to the plaintiff. The mere use of the form constituted the violation.
Dangers of Using Old or Boilerplate Forms
The court did not discuss the background of the employment form. One is certainly left with the impression that it may have been one that the employer used prior to the enactment of the ADA. The case shows the dangers of digitizing old “tried and true” forms for online usage. Using the bad form wasn’t the only issue with the employer’s HR practices. During the EEOC’s investigation, it also learned that the defendant did not preserve employment applications in accordance with ADA rules. As part of the court’s order, it required that the defendant allow inspection of its premises (upon notice of at least one business day) to ensure compliance with the federal antidiscrimination laws.
Preventive Maintenance Doesn’t Apply Just to Plant and Equipment
Well-run businesses take the time and resources to maintain their plant and equipment. Preventive maintenance should not stop there. Business procedures can become “worn out” as well. Are your employment forms up to date? Do you have sufficient retention practices in place? If not, you may be subject to sanctions by the EEOC and other government agencies. You may also be subject to suit. Blado Kiger Bolan, P.S. has more than 30 years of combined experience providing businesses with quality services throughout the Pacific Northwest. Adept at advising on any business-related issue, we can assist established businesses and startups, as well. Because of our firm’s extensive experience in business litigation, we are also better equipped than many law firms to help you avoid expensive litigation. For assistance with any employment-related business concern or any other type of business issue, contact us on the web, or call our office at 253-272-2997.
