Equal Emp't Opportunity Comm'n v. BNSF Ry. Co.
Opinion of the Court
Russell Holt received a conditional job offer from BNSF Railway Company ("BNSF") for the position of Senior Patrol Officer, contingent on Holt's satisfactory completion of a post-offer medical review. During that medical review, Holt disclosed that he had injured his back four years before, suffering a two-level spinal disc extrusion. Holt's primary care doctor, his chiropractor, and the doctor BNSF's subcontractor hired to examine Holt all determined that Holt had no current limitations due to his back and found no need for follow-up testing. Yet as an effective condition to consider him further for the job, BNSF demanded that Holt submit an MRI of his back-at his own cost-or it would treat Holt as having declined the offer. Holt was in bankruptcy at that time and did not obtain an MRI. As a result, BNSF revoked Holt's job offer.
The district court concluded that BNSF's actions violated the Americans with Disabilities Act of 1990 ("ADA"),
I
In June 2011, Holt applied for a job with BNSF as a Senior Patrol Officer. BNSF describes the job duties of a Senior Patrol Officer as "essentially the same" as a city police officer: Patrol Officers protect the safety of people and property, prevent and respond to criminal activities, and arrest suspects, among other duties. At the time he applied to work for BNSF, Holt was working as a criminal investigator in the Pulaski County Sheriff's Office in Little Rock, Arkansas, where he had worked for five years. After interviewing Holt, BNSF extended him an offer of employment-contingent upon him passing a background check and satisfactorily completing a post-offer medical exam.
BNSF contracts with Comprehensive Health Services ("CHS") to coordinate its medical evaluations nationwide. CHS requires applicants to take a strength test, have a basic physical examination, complete the CHS medical questionnaire, submit to a clinical exam, answer any follow-up questions, and potentially undergo a targeted medical examination. For any cases in which the decision to clear or reject an applicant is not routine, BNSF's medical department, not CHS, decides whether an applicant is medically qualified.
Holt proceeded through CHS's evaluation process. In his health questionnaire, Holt disclosed that he had injured his back in 2007 and suffered back pain as a result. An MRI had shown that he had a two-level disc extrusion, meaning that the nucleus pulposus had escaped from two of his spinal discs. In layman's terms, this was described as the "jellylike material" inside two of Holt's spinal discs having been pushed out of the discs and into the spinal column. A follow-up MRI in 2009 showed that one of Holt's spinal discs had broken off, and a chunk of that spinal disc was then floating in Holt's spinal canal.
Holt also suffered from knee pain in March 2011, as well as some associated back pain, which led him to see his primary care doctor, Dr. Richard Heck. Dr. Heck stated that an MRI of Holt's knee might be warranted, but one was never ordered, and Holt's knee and back pain appears to have resolved with medication, chiropractic care, and physical therapy.
On September 21, 2011, the day after Holt submitted his questionnaire disclosing his prior back injury, a CHS nurse called him with more questions about his back. Holt told her that he had kept the same job after his back was injured and that he had no current back issues. The nurse asked him to submit his medical records relating to his back. Within a week, Holt had submitted his medical records; a letter from his chiropractor stating that Holt had responded well to care; the 2007 MRI; and a note from Dr. Heck-who had just reexamined Holt that week-stating that Holt had no current back problems and had functioned normally since 2009.
CHS's subcontractor, Concentra, then assigned Dr. Marcia Hixson to conduct a medical exam of Holt. Dr. Hixson was informed generally of Holt's prior back injury,
CHS then sent its medical file on Holt to BNSF for additional review. BNSF's Medical Officer, Dr. Michael Jarrard, reviewed Holt's file. Dr. Jarrard decided that he wanted additional information before he made an informed decision about whether Holt could perform the Senior Patrol Officer job. Specifically, on November 11, 2011, Dr. Jarrard requested (1) a current MRI and radiologist's report on Holt's back, (2) Holt's pharmacy records for the past two years for prescriptions related to treatment of Holt's back pain, and (3) any other medical records for Holt from the prior two years, including chiropractic notes. Dr. Jarrard stated that he wanted this information because-although Holt reported no current symptoms and all the reviewing doctors had agreed that he could perform the job-Dr. Jarrard was concerned that there was an underlying pathology that might disqualify Holt from the job. Dr. Jarrard told CHS to tell Holt that the additional information was necessary "due to [the] uncertain prognosis of [Holt's] back condition."
What happened next is the subject of some dispute between the parties. But based on the record, this picture emerges: In November, Holt contacted Dr. Heck's office and stated that he needed an MRI for his job application with BNSF. It is not clear whether Holt spoke directly with Dr. Heck about this request, although it appears likely that he did. In any event, it is uncontroverted that Holt at least spoke with Dr. Heck's office about getting an MRI and was told that because he was not currently in pain, the MRI was not medically necessary and so would not be covered by his insurance. An employee from Dr. Heck's office followed up to tell Holt that the office had checked with Holt's insurance company, and the insurance company had confirmed that it would not cover the MRI.
Holt then investigated paying out-of-pocket for the MRI, and was told it would cost more than $2,500 to obtain an MRI without a doctor's referral. Holt was in bankruptcy at the time of his job application. Holt states that he could not afford to pay for an MRI, an allegation BNSF disputes. We do not rely on Holt's representation about his inability to pay in arriving at our holding here. It is not disputed that Holt told BNSF about the high cost of the MRI and that BNSF responded that he was expected to bear the cost of the MRI himself.
After some back-and-forth communications with BNSF in which Holt asked to have the MRI requirement waived, he was told that without the MRI he would not be hired. Holt did not obtain an MRI,
Holt next filed a charge with the Equal Employment Opportunity Commission *921("EEOC"). The EEOC then sued BNSF for alleged violations of the ADA. BNSF moved to dismiss the complaint. The district court denied that motion, holding that the EEOC had properly pleaded a claim under the ADA,
The district court granted the EEOC's motion for partial summary judgment, and denied BNSF's motion. Although the district court had held in denying BNSF's motion to dismiss that the EEOC could bring its claim under § 12112(b)(6), the district court reversed course in its summary judgment order. It instead concluded that § 12112(b)(6) was a disparate impact, not a disparate treatment provision, and that the EEOC could not make out a § 12112(b)(6) claim absent a showing that BNSF had applied an across-the-board policy.
The district court held that the EEOC could, however, make out a "generic § 12112(a) claim" against BNSF. It determined that the EEOC had established all three elements of a prima facie case for disability discrimination under § 12112(a) : The EEOC had shown that (1) BNSF had "regarded" Holt as having a disability due to his 2007 back injury; (2) Holt was qualified for the job; and (3) BNSF discriminated against Holt by requiring an MRI because BNSF regarded Holt as having a disability. Holding that BNSF did not offer evidence sufficient to support any affirmative defense, the district court granted partial summary judgment to the EEOC.
The parties then reached an agreement on the amount to be awarded for damages, although BNSF did not waive its appellate rights. The district court adopted the damages agreement.
Subsequently, the parties briefed the issue of injunctive relief, and the district court entered a nationwide injunction. The district court concluded that because it found BNSF to have purposefully engaged in an unlawful employment practice and BNSF had expressed no intention of changing its behavior, by statute injunctive relief against BNSF was authorized under 42 U.S.C. § 2000e-5(g)(1). The district court's injunction mandated that "BNSF must bear the cost of procuring any additional information it deems necessary to complete a medical qualification evaluation." It also required that "[i]f BNSF chooses not to procure additional information, it must complete the medical examination process, i.e., it must use the medical information it does have to make a determination about whether the applicant is medically qualified for the job for which the applicant received the conditional offer." BNSF appeals.
II
We review de novo the district court's ruling on cross-motions for summary judgment. Guatay Christian Fellowship v. Cty. of San Diego ,
We review for abuse of discretion the district court's decision to grant a permanent injunction, but review de novo the district court's legal conclusions underlying *922the decision. Ting v. AT&T ,
III
Under the ADA, employer medical inquiries are divided into three categories, each with different rules: (1) inquiries conducted before employers make offers of employment; (2) inquires conducted "after an offer of employment has been made but prior to the commencement of employment duties ('employment entrance examinations')"; and (3) inquiries conducted at any later point. Norman-Bloodsaw v. Lawrence Berkeley Lab .,
"Unlike examinations conducted at any other time, an employment entrance examination need not be concerned solely with the individual's 'ability to perform job-related functions,' § 12112(d)(2) ; nor must it be 'job-related or consistent with business necessity,' § 12112(d)(4)." Norman-Bloodsaw ,
Under § 12112(a) of the ADA, an employer is generally prohibited from "discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures [or] hiring ... and other terms, conditions, and privileges of employment." The EEOC contends that BNSF violated this prohibition. To make out a prima facie case for a violation of § 12112(a), the EEOC must show: (1) that Holt had a disability within the meaning of the ADA, (2) that Holt was qualified for the position, and (3) that BNSF discriminated against Holt because of his disability. See Smith v. Clark Cty. Sch. Dist. ,
A.
We first consider whether Holt had a disability within the meaning of the ADA. See Clark Cty. Sch. Dist. ,
An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
The parties agree that for BNSF to have regarded Holt as having a disability, BNSF must have regarded him as having a current impairment. This reading comports both with the statutory text, which prohibits discrimination on the basis of an "actual or perceived impairment" in the present tense,
By regulation, the EEOC has defined an impairment as "[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems."
BNSF argues that it did not perceive Holt to have an impairment; its Medical Officer was simply unsure of the state of Holt's back and so sought more information. BNSF cites Lanman v. Johnson County ,
First, BNSF's citation to Lanman is not persuasive. There, Lanman was a county sheriff's deputy.
Lanman is not helpful here, because the principal basis of its holding has been superseded by statute. The ADA no longer requires a showing of a substantially limiting impairment, following the 2008 enactment of the ADAAA. Compare
Second, we decline to parse the nature of Holt's medical condition. Whether or not Holt's disc extrusion was a permanent condition is irrelevant here. In requesting an MRI because of Holt's prior back issues and conditioning his job offer on the completion of the MRI at his own cost, BNSF assumed that Holt had a "back condition" that disqualified him from the job unless Holt could disprove that proposition. And in rejecting Holt's application because it lacked a recent MRI, BNSF treated him as it would an applicant whose medical exam had turned up a back impairment or disability. BNSF chose to perceive Holt as having an impairment at the time it asked for the MRI and at the time it revoked his job offer.
BNSF cannot hide behind its argument that there was some uncertainty as to the actual state of Holt's back when it assumed that Holt had a back condition that disqualified him from the Senior Patrol Officer job. Construing the definition of "perceived impairment" to encompass situations where an employer assumes an employee has an impairment or disability is consistent with the ADAAA's mandate that "the definition of disability ... be construed in favor of broad coverage of individuals under [the ADA], to the maximum extent permitted by the terms of [the ADA]." See
B
We next address whether BNSF discriminated against Holt because of his perceived impairment. See Clark Cty. Sch. Dist. ,
*925Garrison v. Baker Hughes Oilfield Operations, Inc. ,
The ADA prohibits discrimination "in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."
BNSF, however, argues that § 12112(d)(3) authorizes exactly this type of action. BNSF highlights the following text of § 12112(d)(3) :
A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination.
§ 12112(d)(3). BNSF fails to mention, however, that the statute qualifies this by stating that these medical exams can only be given if "all entering employees are subjected to such an examination regardless of disability." § 12112(d)(3)(A).
BNSF further points out that the EEOC's 1995 Enforcement Guidance states that follow-up exams are permissible so long as they are "medically related to previously obtained medical information." This would appear to be a necessary implication of allowing employers to conduct medical examinations-it would be an odd and incomplete medical exam that could not include follow-up inquiries or testing based on red flags raised in the initial exam. But this does not support BNSF's position that the prospective employee may be forced to shoulder the cost of such follow-up exams.
It is true that follow-up exams will frequently be required of people with disabilities or impairments because they have disabilities or impairments. But this additional burden is implicitly authorized by § 12112(d)(3) 's authorization of medical exams. See Roberts , 817 F.3d at 566. Indeed, the EEOC concedes that BNSF could have required Holt to get an MRI if BNSF had offered to pay for the MRI. The dispute is over cost allocation. Although it authorizes testing that may disproportionately affect persons with disabilities, § 12112(d)(3) does not, by extension, authorize an employer to further burden a prospective employee with the cost of the testing, however necessary the testing may be. The statute is silent as to who must bear the costs of testing.
BNSF argues that because the ADA allows an employer to "require a medical examination" and not to merely "give" or "request" one, the ADA empowers employers to force applicants to pay for the costs any of testing. BNSF reads too much into the word "require." Here, "require" is properly understood to mean that an employer can compel a medical exam, and that a conditionally hired person's participation in the medical exam is not optional. See Requirement , Black's Law Dictionary (10th ed. 2014) ("[s]omething that must be done"). But the word "require" indicates nothing about who must bear the costs of any medical testing. Accordingly, we hold that the standard anti-discrimination provision of the ADA and the ADA's policy *926purposes should control on the issue of who must bear the costs of testing.
An employer would not run afoul of § 12112(a) if it required that everyone to whom it conditionally extended an employment offer obtain an MRI at their own expense.
In short, requiring an applicant to pay for follow-up testing is distinct from merely requiring an additional exam for a person with a disability if an additional exam is necessary to complete the medical examination contemplated in § 12112(d)(3). But it is not at all necessary that a person with an impairment pay for an exam for a thorough exam to be completed. To construe the statute otherwise would be to constrain and limit the general protections of the ADA beyond the necessary implications of the medical testing provision.
Further, elsewhere the ADA puts the financial burden on employers. The ADA requires employers to pay for reasonable accommodations unless it is an undue hardship-it does not require employees to procure reasonable accommodations at their own expense.
Additionally, requiring employers to bear the costs of this testing would discourage *927unnecessary and burdensome testing of persons with disabilities or impairments, and prevent employers from abusing their ability to require tests. As amicus curiae Washington Employment Lawyers Association points out, if employers are not required to pay for the additional medical tests that they require of people with disabilities, then employers might use the cost of medical testing to screen out disabled applicants.
BNSF also argues that the EEOC did not show that BNSF acted with a discriminatory motive, or that BNSF's justifications for its behavior were pretextual. But as we have held en banc , where it is clear that an action was taken because of an impairment or perception of an impairment, no further inquiry or burden-shifting protocol is necessary to establish causation. See Bates v. United Parcel Serv., Inc. ,
C
The final element that we must consider on the § 12112(a) claim is whether Holt was a "qualified individual with a disability." This term means an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." § 12111(8). BNSF makes no attempt to argue that Holt was not an otherwise qualified individual. Nor could it credibly do so: Holt received a conditional offer of employment, at the time of his application he was working as a law enforcement officer, and he was cleared by all three doctors who physically examined him.
That BNSF does not contest this element is telling. Effectively, BNSF has conceded that the medical information it had on Holt at the time it rejected him demonstrated that Holt could perform the Senior Patrol Officer job-yet BNSF still demanded that Holt procure an MRI at his own expense. This is not a case where the medical information previously adduced had been disqualifying and BNSF had provided Holt one last chance to show his ability to perform the job. In such a case, § 12112(a) would not prevent BNSF from choosing not to hire Holt because Holt would be unable to show he was "otherwise qualified for the job." BNSF had ample evidence that Holt could do the job. Yet in the face of all that evidence, BNSF nonetheless decided to impose the burden of procuring an expensive medical test on Holt because of its perception that Holt had an underlying back problem.
We conclude that the EEOC has demonstrated all three elements of a § 12112(a) claim by showing (1) that Holt had a "disability" within the meaning of the ADA because BNSF perceived him to have a back impairment; (2) that Holt was qualified for the job; and (3) that BNSF impermissibly conditioned Holt's job offer on Holt procuring an MRI at his own expense *928because it assumed that Holt had a back impairment. BNSF offers no affirmative defense on appeal. We affirm the district court's holding on ADA liability.
IV
BNSF argues that the district court erred in issuing its injunction, both because it applied the wrong legal standard and because it could not issue a nationwide injunction. BNSF argues that controlling Supreme Court authority required the district court to use the standard four-factor test-which considers (1) whether a plaintiff has suffered an irreparable injury, (2) whether remedies available at law are inadequate to compensate for that inquiry, (3) the balance of hardships, and (4) the public interest-before issuing a permanent injunction. See eBay Inc. v. MercExchange , LLC ,
The district court held that it could grant an injunction to the EEOC by statute, without looking to the four-factor test. It reached this conclusion because the ADA authorizes any person who proves an ADA violation to seek the remedies provided for in Title VII of the Civil Rights Act of 1964. See
We need not and do not decide today whether eBay and Monsanto require the application of the four-factor test in the Title VII/ADA context because we determine that even if the four-factor test is applied, that test would be satisfied here. See Meyer v. Portfolio Recovery Assocs., LLC ,
*929Chalk v. U.S. Dist. Court Cent. Dist. of Cal. ,
Further, preventing BNSF from continuing to discriminate in its hiring practices does not result in any hardship to BNSF; BNSF is merely being forced to stop doing what it is not entitled to do. By contrast, absent an injunction, those with disabilities or perceived disabilities who receive conditional offers from BNSF will face serious hardship: they will either be deprived of a job on the basis of their disability, or else forced to pay large sums out of their own pocket for additional testing. The third factor is therefore satisfied. Finally, the public interest-the fourth factor-is served by preventing employment discrimination. See Gen. Tel. Co. of the Nw. v. Equal Emp't Opportunity Comm'n ,
However, we agree with BNSF that the district court must make adequate factual findings to support the scope of the injunction. See City & Cty. of S.F. v. Trump , No. 17-17478,
We therefore vacate the injunction and remand for the district court to make further factual findings in order to establish the proper scope of the injunction.
Each party shall bear its own costs on appeal.
AFFIRMED in part; VACATED in part and REMANDED.
BNSF's doctor described this as progression in a "non-positive direction," while Holt's primary care doctor opined that in some areas Holt's back looked better, while in other areas his back looked worse.
Dr. Hixson was not provided with any of Holt's prior medical records.
Holt also did not provide the other medical records that BNSF requested, but without the MRI, it would not have mattered whether Holt gave them to BNSF-he still would have been treated as having declined the job offer.
It is undisputed that Holt later had serious back issues requiring him to undergo surgery in December 2013. Holt testified that those issues caused him to take a six-week medical leave, but that he worked as a law enforcement officer before and after the surgery. Regardless, that Holt later had back problems is not relevant to whether BNSF's actions were justified on the information it had before it in 2011. See Nunes v. Wal-Mart Stores, Inc. ,
On appeal, the EEOC does not advance its prior argument that Holt had a record of disability based on his back injury.
While the EEOC must also show that Holt was "subjected to an action prohibited under [the ADA],"
This is not to say that such an action would necessarily be legal; we merely note that § 12112(a) would not prohibit it.
For these reasons, O'Neal v. City of New Albany ,
This is not to imply that an employer may require a prospective employee with a perceived or actual impairment to pay for an inexpensive medical test. On the contrary, our holding here applies regardless of the cost of the medical test at issue, as well as the employee's ability to pay.
While the Fourth Circuit has found no ADA violation where an employer required an employee to obtain, at his own cost, a functional capacity evaluation before returning to work, the court did not explain why it was permissible to require the employee to pay for testing. See Porter v. U.S. Alumoweld Co. ,
BNSF argues that this concern should not have any bearing here because requesting medical information for the purpose of deterring or screening out disabled applicants would be impermissible under the ADA. BNSF's argument ignores both the difficulty an applicant would face in proving discriminatory intent and that while an employer may not intentionally seek to screen out disabled applicants, a cavalier attitude toward applicant-paid testing may effectively screen out persons with disabilities in a way that violates the ADA.
Because we hold that the district court correctly concluded that the EEOC was entitled to summary judgment on its § 12112(a) claim, we do not reach the EEOC's alternative argument that BNSF violated § 12112(b)(6).
BNSF argues that we should cabin the scope of any injunction to the Ninth Circuit because other circuits have authorized the conduct at issue. We need not decide this issue, which will be considered in the first instance by the district court. However, we observe that no other circuit court has yet ruled on the permissibility of requiring persons who have disabilities or perceived disabilities to pay for their own follow-up testing during the hiring process.
Reference
- Full Case Name
- EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. BNSF RAILWAY COMPANY
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- 45 cases
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- Published