Labor & Employment Law Daily Boeing to face trial over claims it revoked job offer to applicant with back pain
Tuesday, October 8, 2019

Boeing to face trial over claims it revoked job offer to applicant with back pain

By Wayne D. Garris Jr., J.D.

After the applicant was offered a job as a firefighter, Boeing learned during a pre-employment medical screening that she received regular treatment for back pain, but her physician said she could work without restrictions.

Denying Boeing’s motion for summary judgment, a federal district court in Pennsylvania determined that a jury must decide whether the employer revoked an applicant’s job offer because of her perceived disability or because her back condition posed a “direct threat” to herself and Boeing’s customers. The applicant’s medical records showed that she was being treated by chiropractor; however both her physician and the employer’s medical provider had indicated that the applicant could perform the job duties without restriction (Hartley v. The Boeing Company, September 30, 2019, Beetlestone, W.).

Medical screening. After the female applicant applied for a position as firefighter/emergency medical technician with Boeing, it offered her the position, provided that she satisfied certain pre-employment requirements, including a medical screening. During her pre-employment screenings, she informed Boeing that she had been separated from the military for medical reasons and diagnosed with herniated discs. As part of the medical screening, the applicant submitted a form from her primary care physician indicating that there were no restrictions on her work abilities. She also provided copies of her medical records that showed she visited a chiropractor several times per week, including while she was applying to Boeing.

Boeing’s exam. A physical examination performed by a physician’s assistant contracted by Boeing revealed “unremarkable” results; in addition, the PA also reviewed all of the applicant’s disclosed medical records. The PA testified that he was concerned based on her medical records showing ongoing chiropractic and medical treatment.

Offer rescinded. After the exam, Boeing rescinded the offer stating that the applicant was not medically qualified. Its letter to the applicant stated that it could not place the applicant in the firefighter position and encouraged her to apply for other opportunities with the company. She then sued, alleging violations of the ADA and Pennsylvania Human Relations Act.

“Regarded as.” The court first found that the employee was an individual with a disability because Boeing regarded her as having a “physiological condition impacting one or more body systems.” with respect to the firefighter position. It was irrelevant that Boeing believed that the applicant could have performed other jobs; she provided enough evidence to establish that Boeing believed that her back problem disqualified her from performing the duties of a firefighter, so she satisfied the ADA’s requirement.

The applicant was qualified. Plus, the applicant provided enough evidence to show that she was qualified for the firefighter position, the court concluded. She was originally offered the position because of her skills and experience, and own her physician indicated that she could perform the duties of the position without an accommodation.

The employer argued that it after its review of the applicant’s medical records and its own exam, it found that the applicant could not perform the essential functions of the job, with or without an accommodation. Rejecting this argument, the court noted that the employer rescinded the offer despite confirmation from the applicant’s physician and the employer’s in-house medical professional that the applicant did not have any physical limitations. A jury could find that Boeing’s decision was based on the “myths, fears, stereotypes with respect to the disabled” that the “regarded as” standard was designed to prevent.

Causation. Boeing rescinded the employee’s offer because of its false perception that the employee was disabled, said the court, noting that the employer’s decision to deviate from the results of its in-house examination after reviewing the applicant’s medical records suggested that this perception had a causal connection to the adverse action.

Direct threat? After finding that the applicant established a prima facie case, the court found that the employer may have articulated a legitimate, non-discriminatory reason for its action. Boeing said it refused to hire the applicant because she posed a “direct threat” to herself and others due to the physical requirements of the position; it expressed fears of the applicant experiencing a flare-up while in the line of duty and putting her coworkers at risk when they were depending on her to perform the job. Further, the applicant also admitted that her back injury was exacerbated once because of a prior workplace injury.

Even reading the evidence in the light most favorable to the applicant, the court stated, a trier of fact could conclude that although the applicant could physically perform the duties of the position, there was risk of a reinjury that could put herself or others in danger.

Pretext. But the same evidence that the applicant used to show she was qualified to perform the job also could convince a factfinder that she would not pose any threat. Specifically, the employer’s disregard for her physician and its own physician’s assistant’s conclusions suggested to the court that Boeing did not really consider her a direct threat but did not want to hire her because of her perceived disability.

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