• New Risks Associated with Pre-Employment Medical Exams
  • February 17, 2015 | Author: Erica E. Flores
  • Law Firm: Skoler, Abbott & Presser, P.C. - Springfield Office
  • Chapter 151B prohibits Massachusetts employers from requiring applicants to submit to a medical examination except as a condition of a job offer, and then only to determine whether the applicant is capable of performing the essential functions of the job. Chapter 151B also prohibits discrimination against a job applicant on the basis of a “perceived” disability. In a recent opinion, the Superior Court offered important new guidance about what it really means for an employer to “regard” an applicant as disabled, about how firm a job offer must be before an employer may request a medical exam, and about how courts determine whether the exam was conducted for a permissible purpose.

    In 2006, Jill Kavaleski received the first of three conditional job offers to become a Boston police officer. Each offer was subject to the approval of a Department psychiatrist, who could disqualify an applicant upon diagnosis of certain types of conditions or disorders. Kavaleski went through the examination process three times. After each examination, Department psychiatrists reported that she exhibited a cold manner, defensiveness, rigidity, a “concrete” way of thinking, signs of a possible eating disorder and “messy” hair, and concluded that she would have difficulty communicating effectively with co-workers and insufficient coping skills. None of the Department psychiatrists diagnosed her with a disqualifying condition or disorder, but all three times, they disqualified her from employment as a police officer and rescinded her offer.

    After her third rejection, Kavaleski appealed to the Civil Service Commission, which ruled in her favor, ordered the Department to put her at the top of the eligibility list and forbade any of the Department psychiatrists who had evaluated her previously from conducting her psychological exam. The City of Boston appealed the decision, but the Supreme Judicial Court upheld the ruling, agreeing that the psychiatrist’s conclusions were subjective and unsupported. Kavaleski subsequently passed the psychological exam, and was accepted into the Boston Police Academy, but in the course of these proceedings, she filed claims against the City and one of the Department psychiatrists, alleging disability discrimination and improper hiring practices in violation of Chapter 151B. The Superior Court ruled in Kavaleski’s favor on both counts.

    The Court first considered Kavaleski’s claim that the City revoked her conditional offers because it erroneously perceived her to have a disqualifying disorder or condition that substantially impaired the major life activity of “working.” The City apparently did not dispute that it “regarded” Kavaleski as having an “impairment,” but argued that it did not regard her perceived impairment as substantially limiting her ability to work in general, only her ability to be a Boston police officer. The Court disagreed, reasoning that “the ability to analyze situations, make judgments, and relate effectively to other people is essential to many, if not all, jobs.” The Court also concluded that the psychiatrists’ comments about her weight, eating habits, and thought processes indicated that the City “regarded” Kavaleski as being substantially impaired in the other major life activities of eating, thinking, concentrating and interacting with others as well. Finally, the Court rejected as unsupported the City’s argument that it had a legitimate, non-discriminatory reason for disqualifying Kavaleski; namely, “its sincere belief that she was unable to perform the essential functions of an armed Boston police officer.”

    The Court next considered Kavaleski’s claim that the Department’s psychological screening process violated Chapter 151B because it was used not for a proper purpose, but as “a ruse in order to screen out candidates for personal or political reasons.” Relying on guidelines issued by the Massachusetts Commission Against Discrimination, the Court first concluded that an employer may only require an applicant to submit to a medical or psychological exam after it has extended a “real” job offer; that is, an offer that is not contingent on anything other than the results of that exam. Accordingly, “all non-medical components of the application process must have been completed” before the offer is made, including background checks, credit checks, etc. In this way, if an employer rescinds the offer after the examination, the employee knows for certain that the decision was based on the results of the exam.

    In Kavaleski’s case, however, the Court concluded that the psychological exams were unlawful as a matter of law - even if the offers were “real” - because they led to the City’s erroneous perception that she had a disability and that perception was the basis for her disqualification. According to the Court, this meant that the City did not use the exam “solely” to determine whether Kavaleski could perform the essential functions of a police officer. In response, the City argued that the exam was lawful because it was “job-related and consistent with business necessity,” but the Court concluded that those factors only matter if the exam revealed an actual disability and, here, it “served only to create the City’s erroneous perception of a handicap.”

    If it stands, the Kavaleski decision could have serious ramifications for employers. First, the opinion indicates that an employer may be guilty of “regarding” an applicant as disabled on the basis of conclusions and even simple commentary about the applicant’s appearance, personality traits, and communication skills - factors employers routinely consider and evaluate at many points during the hiring process. Second, the decision clarifies that employers must complete their evaluation of all other employment criteria, and provide the results of any other contingencies to the applicant, before they require the applicant to undergo a medical or psychological exam - otherwise, the offer may not be regarded as “real.” Finally, the decision suggests that the validity of an employer’s reasons for requiring an applicant to undergo a medical or psychological exam may depend on the results of that exam. In other words, if the exam leads to the erroneous perception of a disability, it may be deemed unlawful regardless of why the employer required the exam and what its selection criteria were.

    If your company requires applicants to undergo any type of medical or psychological exam, or even just evaluates personality, cognitive, and other such criteria as part of its hiring practices, you may want to review your hiring practices and selection criteria to ensure that they are consistent with the Kavaleski decision. You should also make those involved in hiring aware of the decision and consider updating written policies, practices and other guidelines.