An employer incurred a liability in the amount of $400,000 for disability discrimination when it asked an employee to submit to medical inquiries and a medical examination that were not job-related, according to the 4th U.S. Circuit Court of Appeals.
The Baltimore County, Md., Bureau of Highways employed the plaintiff as a laborer. After becoming aware that the plaintiff had a back injury, Baltimore County began investigating. Rather than limiting itself to investigating the back injury as it related to the plaintiff's employment as a laborer, Baltimore County undertook a broad investigation into his medical condition. Among other things, it used "out-of-date medical authorizations" to obtain records for which it had no apparent need, including cancer-related records. Further, based on its beliefs about the impact of cancer treatment on the plaintiff, Baltimore County required him to undergo a medical examination to determine whether he had brittle bones.
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Baltimore County ultimately terminated the plaintiff, who filed a lawsuit alleging that he had been terminated because of his disability in violation of the Americans with Disabilities Act (ADA) and the Maryland Fair Employment Practices Act.
The lawsuit proceeded to a trial. After hearing the evidence, the jury rendered a verdict for the plaintiff and awarded him damages of $400,000, which included a $298,000 award for noneconomic damages (e.g., emotional pain and suffering).
Baltimore County appealed the verdict to the 4th Circuit. It argued that the trial court refused to allow evidence that the plaintiff applied for and received Social Security Disability Insurance (SSDI) benefits and did not properly instruct the jury that the plaintiff had the obligation to explain inconsistencies between his ADA claims and SSDI application. The county also argued that the noneconomic damages award was not supported by the evidence.
The 4th Circuit affirmed for the plaintiff. Regarding the SSDI arguments, the appellate court stated that the record showed the county was permitted to question the plaintiff about statements he made in SSDI proceedings and concluded that the trial court appropriately instructed the jury to consider the plaintiff's explanation. Citing Supreme Court precedent, the 4th Circuit expressly declined to "apply a special negative presumption" whereby the claim for SSDI benefits would preclude the plaintiff's ADA claim.
Regarding the noneconomic damages award, the appellate court found ample supporting evidence. Specifically, in addition to the plaintiff's testimony regarding his emotional pain and suffering, the 4th Circuit stated that the wrongful medical inquiries and examination pursued by the county were an independent basis for a noneconomic damages award.
The appellate court cited undisputed evidence that the county used out-of-date medical authorizations to gather the plaintiff's cancer-related medical records and that it made unlawful inquiries when it sought and received records regarding the plaintiff. In addition, the plaintiff was required to undergo a medical examination based solely on speculation that his bones may be brittle because of his cancer treatments. The 4th Circuit said that the county should have limited its requests to inquiries regarding the plaintiff's back injury.
Bingman v. Baltimore County, 4th Cir., No. 17-1525 (Dec. 29, 2017).
Professional Pointer: When it is necessary to obtain current medical information related to an accommodation request or fitness for duty concern, an employer may seek only information that is "job-related and consistent with business necessity." When this limitation is disregarded, an employer may incur liability.
Michael G. McClory is an attorney with Bullard Law, the Worklaw® Network member firm in Portland, Ore.
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