A recent Tenth Circuit Court of Appeals ruling serves as a strong reminder to employers to avoid asking job applicants health-related questions. In Griffin v. Steeltek, Inc., the court held that a job applicant who was neither disabled, nor perceived to be disabled, was nonetheless entitled to sue the employer under the Americans with Disabilities Act ("ADA") for injuries flowing from impermissible questions on his job application.
Bad Questions
Griffin applied for a position as a grinder at Steeltek. Griffin's job application posed the following questions: "Have you ever received Workers' Compensation or Disability Income payments? If yes, describe." and "Have you physical defects which preclude you from performing certain jobs? If yes, describe." Griffin answered the first question, stating, "3 degree burn to hand & foot, surgery to elbow, pain in shoulder." He did not answer the second question. The court assumed the questions were improper because the ADA forbids employers from making medical inquiries prior to employment: "[A] covered entity shall not . . . make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability." While an employer is allowed to make "preemployment inquiries into the ability of an applicant to perform job-related functions," the burden is on the employer to show that its inquiry is "job-related and consistent with business necessity." The questions in Griffin clearly fell into the improper category, as they focused on the extent and nature of the applicant's disability, not on the applicant's ability to perform the job tasks at hand.
Standing to Sue
Having assumed the application questions were improper, the issue for the Tenth Circuit Court of Appeals was whether Griffin – who was not disabled and was not perceived to be disabled – could sue Steeltek on the theory that Griffin's responses to Steeltek's improper questions revealed health-related information that caused Steeltek to reject his application. The court decided that the language of the ADA, in prohibiting inquiries of a "job applicant" as to the existence, extent, or nature of a disability was intended to protect a larger class of people than simply disabled people. The court also found that the policy of the ADA to eliminate disability discrimination is best served by allowing all job applicants who are subjected to illegal medical questioning and who are in fact injured thereby to sue, rather than to limit that right to a narrower subset of applicants who are in fact disabled. Thus, Griffin could sue under the ADA for whatever injury he suffered as a result of being asked the improper questions.
This decision clearly illustrates why employers should avoid questions concerning a job applicant's medical condition during the application process. To the extent they are necessary, questions should focus on the applicant's ability to perform specific job functions rather than on the nature or extent of any medical condition that might impact the applicant's ability to perform.