By Dave Strausfeld, J.D. A farming business violated the ADA by requiring job applicants to complete a three-page "Health History," because the ADA does not permit employers to make medical inquiries until after an offer of employment has been made, held a federal district court in Missouri, in granting a joint motion for entry of judgment on the pleadings in an EEOC enforcement suit. The health history form also violated GINA’s prohibition on questions that could reveal genetic information. As a remedy for its violations, the farm was permanently prohibited from engaging in such conduct and ordered to pay $10,000 in damages to the individual on whose behalf the EEOC was suing, who had decided not to apply for the job when he saw the health form and instead contacted the EEOC (EEOC v. Grisham Farm Products, Inc., June 8, 2016, Harpool, D.). Health history part of downloaded job application. When a retired law enforcement officer learned that a farming business was hiring for warehouse positions, he downloaded the farm’s seven-page online application for employment and noticed it included a three-page health history form with 43 questions for all applicants to answer—including everything from allergies to epilepsy to depression to heart murmurs to sexually transmitted diseases and beyond. Because he was concerned he would reveal his medical conditions and disabilities if he fully and completely answered each question, the applicant decided not to apply for the job, and instead contacted the EEOC, with whom he filed a charge of discrimination challenging the propriety of the health history form. The EEOC brought a suit against the farm on his behalf. After the farm filed its Answer, the EEOC moved for judgment on the pleadings. The farm did not oppose the motion once the parties stipulated that the job applicant’s damages were $10,000. ADA. The farm’s health history form clearly violated the ADA, because the statute does not permit pre-offer medical inquiries. The purpose of this prohibition is to curtail all questioning that would serve to exclude persons with disabilities from being fairly considered for hire. At the pre-offer stage, employers may inquire into the ability of an applicant to perform job-related functions, but such inquiries should not be phrased in terms of disability. For example, an employer may ask whether an applicant has a driver’s license (if driving is an essential job function), but may not ask whether the applicant has a visual disability; this driving example is found in both the legislative history and in EEOC interpretative regulations, the court noted. Here, then, requiring job applicants seeking positions with the farm to fill out the health history form was obviously unlawful. It would be no defense to argue that the former law enforcement officer was not actually a person with a disability, the court explained, because the relevant ADA provision on medical exams/inquiries is written broadly and is not restricted to persons with disabilities. Nor did it matter under the case law that he never actually applied for the job. GINA. The farm’s health history form was also problematic under GINA. The form required applicants to reveal whether they had "consulted" a doctor or other health care provider within the past 24 months and to identify whether "future diagnostic testing" had been recommended or discussed. Such questions would require a job applicant who had preventatively "consulted" with a physician, or been told by a physician to get diagnostic testing in light of family history or risk factors, to reveal such information to the farm. Under GINA, employers were not permitted to solicit information of this kind. Remedy. As a remedy for its violations of the ADA and GINA, the farm was permanently prohibited from making any pre-offer medical inquiries or requiring any pre-offer medical examinations. The farm would also have to submit to EEOC inspections to ensure compliance with certain recordkeeping practices that the court also mandated. Finally, the farm was ordered to pay the retired law enforcement officer $10,000 in damages for the ADA violation.
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