Classification of Personnel Files May Show Discrimination

By Roger S. Achille August 12, 2020
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An employee with a disability who was denied re-employment by his former employer can proceed to trial with his discrimination claim under the Americans with Disabilities Act (ADA), having demonstrated sufficient facts that the employer uniquely classified personnel files of employees with disabilities that rendered them ineligible for rehire.

The plaintiff had mental and physical impairments that made it difficult for him to communicate with others, process complex information and lift heavy objects, but he was able to do his job at George's Inc., a producer of poultry and other food products, with reasonable accommodations. The plaintiff stopped working at George's at some time prior to October 2015. George's HR department assigned the plaintiff the code 333, which made him "not eligible for rehire" because of a known or perceived medical condition.

Around October 2015, the plaintiff applied to be rehired by George's. Because of the code 333 in his file, George's management instructed the HR team that they could interview the plaintiff but could "not hire him no matter what." On the day of his interview, the plaintiff did not show up. The plaintiff came to George's the next day and asked to reschedule the interview. Upon instruction from management, the HR team refused to reschedule the plaintiff's interview despite having rescheduled interviews for other applicants who had missed their interviews.

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The plaintiff alleged that George's had a policy of refusing to consider code 333 applicants because of an actual, perceived or recorded disability. George's argued that the plaintiff failed to allege a causal link between any disability and George's decision to not rehire the plaintiff. The district court found no discriminatory motive with George's denying the plaintiff the job because "failing to attend a job interview is a legitimate, nondiscriminatory reason to justify an employer's refusal to extend a job offer."

However, the 8th Circuit cautioned that the district court did not analyze the implications of the plaintiff's code 333 allegations or the allegation that George's management said to "not hire [the] plaintiff no matter what."

Prohibited discrimination under the ADA includes intentional discrimination against a qualified individual with a disability in hiring and job application procedures. It also includes limiting, segregating or classifying a job applicant in an adverse way because of his or her disability.

The 8th Circuit noted that the plaintiff alleged that he suffered from a combination of mental and physical disabilities and had a record of impairment. Moreover, the plaintiff alleged that he was able to do his job with reasonable accommodations prior to October 2015, which the court explained may support a determination that he was a qualified individual under the ADA.

Further, the plaintiff alleged that managerial staff at George's documented the plaintiff's disability through code 333 and instructed HR employees to not hire the plaintiff on that basis. "Given the nature of the facts alleged, including insider information from at least one of George's HR employees," the court refused to dismiss the case, speculating that the plaintiff may eventually attempt to prove intentional discrimination by indirect and direct evidence.

Cook v. George's Inc., 8th Cir., No. 18-3294 (March 11, 2020), petition for rehearing en banc denied (April 21, 2020).

Professional Pointer: Employers should maintain medical files, including information and documentation related to disability accommodations, separate from an employee's personnel file.

Roger Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I.

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