Tuesday, July 8, 2008

Medical questions during job interview doom employer in discrimination case

Doe v. Salvation Army, decided last week by the 6th Circuit, provides employers with a valuable lesson on the dangers of asking the wrong question during a job interview.

Doe (whose proceeded pseudonymously to protect his confidentiality) had a history of paranoid schizophrenia. During a job interview with the Salvation Army, Doe was told of the requirements for the job, including the expected work days. Doe advised that he could not work on Fridays because, "[he] had to see [his] doctor, and . . . pick up [his] medicine." Doe claims that the interviewer asked him in response, "what kind of medication," to which Doe responded "psychotropic medicine." Doe claims the interviewer then ended the meeting and Doe was ultimately rejected for the job.

The Salvation Army argued, and the district court agreed, that Doe was rejected for safety concerns, not for reasons solely based on his disability. The 6th Circuit, however, found there to be a genuine issue of material fact as to whether the decision not to hire Doe was based solely on his disability:

It was immediately after Doe revealed his specific medications that Snider abruptly ended the interview. Snider testified that he ended the interview stating, "I did not say flat out no," but rather, "I'll have to check [the insurance] out." As we now know, he did not do so.

An employer may not base a hiring decision on a perceived notion that the applicant’s disability renders him incapable to perform the job. The district court stated that "[c]ourts have unanimously held that an individual with a disability 'cannot perform the essential functions of a job if his handicap poses a significant risk to those around him.'" But in May 2005, Snider ended Doe's interview not because he concluded that Doe's employment as a driver would pose a risk to others, but because Snider "wasn't going to take a chance" on Doe.

The Salvation Army got in trouble because it sought the wrong information in the wrong way. The employer provided legitimate information - the required work hours - an essential function of the job. Unprompted, Doe then voluntarily disclosed medical information. At that point, the interviewer should have simply confirmed that Doe could not meet that particular essential requirement and moved on to a different topic. At that point the company could have rejected Doe based on his inability to work the required hours, a decision that would not have been tainted by the inappropriate follow-up question, "What kind of medicine?"

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