Neutral Hiring Policy Protects Against Adverse Action

Court rules that declining to hire rehabbed nurses does not violate ADA

By Roy Maurer February 4, 2016

A hospital did not violate the Americans with Disabilities Act (ADA) when it refused to hire two nurses who had completed a drug rehabilitation program and had restricted licenses because the hospital consistently applied its neutral hiring policy, an appeals court ruled.

The U.S. Court of Appeals for the Sixth Circuit ruled in Lopreato v. Select Specialty Hosp.-N. Ky. that the hospital’s record of refusing to hire nurses with current or previous restrictions on their professional nursing licenses regardless of the reason showed that its actions were nondiscriminatory.

The nurses alleged that their drug addictions constituted disabilities under the ADA and the hospital’s decision not to hire them solely because they had license restrictions after participating in a state-sanctioned drug rehabilitation program violated the statute.

Elley Lopreato and Susan Taylor were both previously terminated from St. Elizabeth Healthcare, which has several locations across northern Kentucky, after stealing narcotics for personal use.

The nurses enrolled in a drug rehabilitation program through which they signed an agreement to have restrictions placed on their nursing licenses. In November 2011, Select Specialty Hospital, a long-term acute care hospital in northern Kentucky, began to take over St. Elizabeth, and Lopreato and Taylor applied for jobs with Select. Both women lied on Select’s employment application, stating that they were under no restrictions. At the time, they were both limited in the ability to work long hours and to administer narcotics without supervision.

The hospital declined to hire them when it found out about their license restrictions and pointed to its practice of not hiring nurses with current or former restrictions or disciplinary action on their licenses regardless of the reason.

The court relied on a U.S. Supreme Court case, Raytheon Co. v. Hernandez, 540 U.S. 44 (2003), to conclude that Select’s practice provided a legitimate, nondiscriminatory reason to not hire Lopreato and Taylor because the practice was similar to an employer’s policy of not rehiring employees who were previously terminated for any violation of workplace conduct.

“It is undisputed that Select’s practice applies to all applicants who have or have had restrictions on their professional licenses, regardless of whether the applicant’s license is or has been restricted because the applicant is disabled or because of some other reason,” Judge John M. Rogers said.

Rogers pointed out that the nurses did not allege that Select treated them differently than similarly situated applicants who were not disabled. For instance, Select did not hire any nondisabled applicants who had prior restrictions on their licenses that resulted from the applicants’ engagement in misconduct not connected to drug abuse.

The nurses’ allegations that Select’s hiring practice disproportionately impacts drug addicts “would only be relevant if Lopreato and Taylor had pursued a disparate impact theory, which they have not,” Rogers said. Lopreato and Taylor acknowledged only disparate treatment claims. Disparate impact refers to policies and practices that appear to be neutral, but result in a disproportionate impact on protected groups. Disparate treatment must be intentional.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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