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A temporary employee with back and shoulder issues who effectively performed production work before failing a physical assessment could bring discrimination claims for his termination, the 10th U.S. Circuit Court of Appeals ruled.
Arnold Iselin worked for Prime Industrial Recruiters Inc., a temporary employment agency. On Jan. 7, 2015, Prime assigned Iselin to work for the Bama Companies Inc. as a general production worker. Prime paid Iselin his wages, but Bama determined his work assignments, pay rate, work hours and job duties.
Iselin believed that Prime and Bama knew when they hired him that he had a disability due to a back problem and a torn rotator cuff. In April 2015, Bama moved him to a different work location because of his back. Iselin continued working until mid-June, when Bama offered to make him a permanent employee with a raise if he passed a physical demand assessment (PDA). Iselin underwent the PDA on June 18, 2015. The next day, Bama told him that he had not passed the PDA, and therefore his employment was terminated.
[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]
Iselin obtained a right-to-sue letter from the Equal Employment Opportunity Commission and then sued Bama under the Americans with Disabilities Act (ADA). In an amended complaint, he claimed discriminatory termination, discriminatory failure to hire, failure to accommodate and misuse of employment testing. Throughout the complaint, Iselin alleged that he was qualified and able to perform the essential functions of his position as a general production worker for Bama and that he did perform these essential functions with an occasional reasonable accommodation until June 2015.
On Bama's motion, the district court dismissed the complaint for failure to state a claim. The court concluded that Iselin's first three claims failed because he did not pass the PDA, which showed he could not perform the essential job functions, and he did not mention an accommodation that Bama could have made. The court found that Iselin's fourth claim—misuse of employment testing—failed because the ADA allows an employer to condition new employment on a medical exam, and Bama was offering Iselin a new job.
Iselin appealed the decision to the 10th Circuit, which reviewed the district court's decision anew. The court considered Iselin's claims that his firing was inconsistent with his effective work performance. Iselin alleged that he was able to perform all of the tasks he was asked to perform during his PDA and that Bama did not request any medical information or examinations during the first five months he worked as a general production worker.
As for Iselin's discrimination claims, the court found it significant that Iselin alleged that he performed the essential functions of a general production worker throughout his time at Bama. This supported an inference of discrimination because an employee's ability to perform the essential job functions in the past shows an ability to perform that job in the present.
Thus, the court found that Iselin's allegations were sufficient to infer that Bama could reasonably accommodate Iselin's disability, and it reversed the dismissal of Iselin's first three claims of discrimination.
Regarding Iselin's misuse of employment testing claim, the court considered the ADA's limitations on employment tests. While the ADA generally prohibits an employer from using a medical exam to determine the existence, nature or severity of a disability, the ADA provides limited exceptions for job applicants and current employees. In the case of a job applicant, an exam may be required after a conditional offer of employment has been made, as long as all new hires are subjected to the examination regardless of whether they have a disability. In the case of a current employee, an exam may be required if it is job-related and consistent with business necessity.
Iselin alleged in his complaint that he was a Bama employee but asserted that Bama violated the ADA's medical exam provision governing job applicants. His complaint lacked allegations that would support a medical examination claim either as a job applicant or a current employee. Iselin did not mention whether all new hires are subjected to such an examination regardless of disability status or whether the PDA was job-related and consistent with business necessity. The court thus upheld the dismissal of Iselin's misuse of employment testing claim.
Iselin v. The Bama Companies Inc., 10th Cir., No. 16-5132 (May 26, 2017).
Professional Pointer: Employers should exercise caution when imposing physical ability tests for the purpose of evaluating the work ability of employees with disabilities. Even in circumstances in which the tests are permitted, employers can be liable for rejecting a worker based upon such a test when the worker has already shown through past job performance that he or she can perform the position.
Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.
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