Labor & Employment Law Daily DOJ turns against EEOC in response to SCOTUS certiorari petition in ADA case
Thursday, August 15, 2019

DOJ turns against EEOC in response to SCOTUS certiorari petition in ADA case

By Pamela Wolf, J.D.

Disagreeing with summary judgment for the EEOC, the DOJ argues there was no evidence the employer’s decision requiring an applicant to pay for a follow-up MRI after a conditional job offer was discriminatory.

The Justice Department has filed a brief disagreeing with the EEOC’s position below in a disability discrimination case and asking the Supreme Court to grant BNSF Railway Company’s petition for certiorari, vacate the judgment below in favor of the EEOC, and remand the matter for further consideration.

Ninth Circuit decision. Below, the Ninth Circuit ruled that BNSF perceived an applicant for a senior patrol officer position as having a back impairment at the time it asked for an MRI and at the time it revoked his job offer, finding BNSF could not hide behind its argument that there was some uncertainty as to the actual state of his back when it assumed he had a back condition that disqualified him for the job.

The appeals court also found that the applicant was qualified and BNSF impermissibly conditioned his job offer on his procuring an MRI, at his own expense, because it assumed he had a back impairment; it thus affirmed the judgment imposing liability on BNSF under the ADA. However, the appeals court also vacated the lower court’s nationwide injunction that prohibited BNSF from engaging in certain hiring practices, finding the court below had not made adequate factual findings to support the injunction’s scope.

BNSF turns to High Court. Disagreeing with parts of the Ninth Circuit’s ruling, BNSF filed a petition for certiorari asking the Justices to determine whether (1) an individualized medical examination as a condition of employment to determine if a job applicant/employee can safely perform the required duties of the position alone establishes that an employer “regards” an applicant/employee as disabled for purposes of an ADA discrimination claim, and (2) requiring an applicant/employee to pay for an employer-required individualized medical examination establishes that an employer has unlawfully discriminated under the ADA.

DOJ throws EEOC under the bus. Responding to the employer’s petition, the DOJ disagreed with BNSF’s contention that it did not perceive the applicant as having a physical impairment within the meaning of the ADA, arguing that the Ninth Circuit correctly rejected that contention, a decision not in conflict with any decision of the Supreme Court or any other court of appeals.

But as to BNSF’s contention that the court of appeals erred in concluding that the employer discriminated against the applicant on the basis of disability by requiring him to obtain a follow-up MRI at his own expense, the DOJ sided with the employer and against the EEOC in its argument below that it was entitled to summary judgment on the issue of discrimination. The brief for the United States agreed that “summary judgment in favor of the EEOC was inappropriate.”

The Ninth Circuit granted summary judgment on the theory that the discriminatory act was petitioner’s decision to require the applicant to pay for the follow-up MRI. But the record does not support that theory, according to the DOJ, which argued there was no dispute that BNSF’s decision to require the follow-up MRI was not discrimination on the basis of disability, and there is no evidence that BNSF declines to pay for only some applicants’ follow-up MRIs. Instead, the record shows that BNSF had a general policy of declining to pay for any follow-up MRI, and that the applicant was subjected to the cost of paying for the MRI only because a follow-up MRI was required by BNSF. Given the lack of evidence to the contrary, summary judgment in the EEOC’s favor was inappropriate, according to the DOJ.

The case is No. 18-1139.

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