Top 5 Tips for Conducting Pre-Employment Medical Exams

In a recently filed lawsuit, the U.S. Equal Employment Opportunity Commission contends that Consolidated Edison Co. (“Con Ed”) violated the Americans with Disabilities Act (“ADA”) and the Genetic Information Non-Discrimination Act of 2008 (“GINA”) by its use of pre-employment medical examinations. According to the Complaint, Con Ed required applicants to submit to pre-employment medical examinations in which the company improperly sought disclosure of genetic information and used this information in deciding whether to hire certain applicants.

Employers should be aware of the following general requirements under the ADA and GINA:

  1. The ADA prohibits all disability-related inquiries and medical examination prior to a valid offer of employment
  2. If a valid conditional offer of employment has been issued, the ADA allows an employer to make disability-related inquires and conduct medical examinations as long as it does so for all entering employees in the same job category
  3. Once employment begins, the ADA only permits an employer to make disability-related inquiries and require medical examinations if they are job-related and consistent with business necessity (see guidance by clicking here)
  4. GINA prohibits employers from requesting genetic information about applicants, such as family medical history, during the course of any pre-employment medical examination; and
  5. GINA prohibits employers from using genetic information in making employment decisions, such as hiring, firing, promotions and compensation (see guidance by clicking here)

Employers found to have violated the ADA and/or GINA could be liable to aggrieved applicants and employees for back pay, compensation for economic losses, emotional pain and suffering, punitive damages, and attorneys’ fees. Consequently, employers are encouraged to review their hiring procedures and contact counsel with any compliance question that may arise.

U.S. Court of Appeals Decision Highlights Importance of Carefully Drafting Release Agreements

In Zuber v. Boscov’s, the Third Circuit narrowly interpreted a release agreement to permit the plaintiff to pursue a claim under the FMLA for interference and wrongful termination.  The employer moved to dismiss on the basis that his claims were barred by a previously-entered Compromise and Release Agreement (“C&R”) settling his workers’ compensation claim.  The C&R provided that it constituted a “full and final resolution of all aspects of the 8/12/2014 alleged work injury claim” and that the:

“employee is forever relinquishing any and all rights to seek any and all past, present and/or future benefits, including, but not limited to, wage loss benefits, specific loss benefits, disfigurement benefits, medical benefits or any other monies of any kind including, but not limited to, interest, costs, attorney’s fees and/or penalties for or in connection with the alleged 8/12/2014 work injury claim as well as any other work injury claim(s) Employee may have with or against Employer up through and including 4/7/2015.”

The District Court granted the employer’s motion to dismiss holding the language contained in the C&R was broad enough to encompass the FMLA claims.  However, the Third Circuit reversed, finding that the “C&R is unambiguously a specific and limited release rather than a general release,” that was only intended to release future workers’ compensation claims. 

The Third Circuit’s decision was limited to the specific agreement at issue, and the Court only discussed its effect on the employee’s FMLA and common law claims.  Nevertheless, releases should be drafted carefully to be as comprehensive as legally possible. 


Federal Court: Employer’s Letter to Employees During Pending EEOC Investigation May Constitute Unlawful Retaliation

In EEOC v. Day & Zimmermann NPS, Inc., a federal court in Connecticut found that an employer that sent a letter to employees informing them they might be contacted by the Equal Employment Opportunity Commission (“EEOC”) may be liable for unlawful retaliation.  This unlikely scenario came about after the EEOC requested the last known telephone numbers and addresses of employees who may have information relevant to a former employee’s charge of disability discrimination.  After providing the contact information to the EEOC, the employer sent a letter to over 100 employees which included: (1) the name of the Charging Party; (2) a brief description of the allegations against the company and a summary denial; (3) the employees’ right to decide whether they wished to speak with EEOC; (4) the name and contact number of the company’s attorneys should any employee wish to have them present for the interview; and (5) a description of the company’s anti-retaliation policy.

The Company described the letter as a “standard courtesy notice” designed to “minimize business disruption” and keep the employees informed.  However, the charging party alleged that after the letter was sent, he was treated unfairly with respect to work referrals.

In determining that the letter may constitute unlawful retaliation, the Court found that the Company’s inclusion of Charging Party’s name, together with the description of sensitive facts concerning Charging Party’s requested accommodations, might have a reasonable tendency to coerce or intimidate the Charging Party and/or other employees from providing information to the EEOC.

This case demonstrates that employers should use caution when communicating with employees during the course of a government agency investigation. While such communications can serve important employee relations purposes, careful consideration should be given to the risks of sending the communication and, if so, the contents of such communication.

11th Circuit: Rights of Breastfeeding Employees Protected by Federal Law

On September 7, 2017, the Eleventh Circuit in Hicks v. City of Tuscaloosa, 16-13003 held that breastfeeding is covered under the Pregnancy Discrimination Act (“PDA”).  In Hicks, the plaintiff was a police officer with the Tuscaloosa Police Department.  Hicks’ doctor recommended that the Plaintiff be considered for alternative duties because the ballistic vest could cause breast infections that could cause an inability to breastfeed.  Plaintiff’s supervisor, however, did not believe Hicks had any limitations and told her she could either not wear a vest or wear a vest that could be “specially fitted” for her.  To Hicks, not wearing a vest was not an accommodation because it was dangerous and the “specially fitted” vest option would be ineffective because those vests left “gaping, dangerous holes.”  Hicks resigned and filed her lawsuit asserting, among other things, that the City violated the PDA by compelling her to resign after refusing her an accommodation to breastfeed at work.

The jury found that the City’s action in refusing an accommodation afforded to other employees (in the past, the department had modified working conditions for male officers for various reasons) constituted a constructive discharge.  The Eleventh Circuit, citing to a prior Fifth Circuit decision, found that the “denial of accommodation for a breastfeeding employee violated the PDA when it amounted to constructive discharge.”

Several state and local laws require employers to provide accommodations for breastfeeding employees (see, e.g.,  However, all employers should be mindful that the ruling in Hicks represents the second time a federal appellate court has reached the conclusion that discrimination because a woman is breastfeeding is prohibited under the PDA, and revise their policies and procedures accordingly.

Spousal Jealousy Provides Grounds for Discrimination Claim

In a decision of apparent first impression in New York, an appellate court has ruled that the sexual jealousy of an employer’s spouse may be considered gender discrimination under New York State and New York City law (Edwards v. Nicolai).  In this case, the husband and wife were co-owners of a chiropractic office.  The practice hired a female massage therapist and yoga instructor.  The husband was her direct supervisor.  The complaint alleged that during the course of plaintiff’s employment, her relationship with the husband was “purely professional.”  During the course of employment, the husband allegedly told her that his wife might become jealous because she was “too cute.”  Several months thereafter, the wife sent the employee a text message stating “You are NOT welcome any longer … DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” Soon thereafter, the employee claimed she received an email from the husband stating: “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.”

The trial court granted the employer’s motion to dismiss plaintiff’s claims of gender discrimination. However, the appellate court overruled the decision based on a prior decision which held that “adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination.”

Take away: Employers (especially those in New York) should give broad consideration to possible gender-based claims before taking adverse action against an employee where the gender of the employee is related to the employment action.

Top 5 Things to Know About Workplace Language Rules

The EEOC filed suit recently in the United Stated District Court for the Southern District of Texas alleging that an employer discriminated against non-Hispanic applicants by requiring that they be Spanish-speaking.  See EEOC v. Champion Fiberglass, Inc., Civil Action No. 4:17-cv-2226.  A copy of the Complaint can be viewed here. The EEOC alleges that this requirement has resulted in statistically significant underrepresentation of non-Hispanics in the employer’s workforce.  While this case is only in its early stage, employers should understand the EEOC’s position which can be summarized as follows:

  1. Rules must be  justified as a business necessity.
  2. Rules should be limited to ensuring that employers can operate safely and efficiently.
  3. Language control rules that extend to lunchtime and breaks rarely are justified.
  4. Rules controlling English (or other language) speaking may be justified for:

a. communications with customers or co-workers who only speak that language;

b. emergencies or other situations in which workers must speak a common language to promote safety;

c. cooperative work assignments in which the language is needed to promote efficiency.

5.   Employers may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences for violating it.

The EEOC has recently undertaken investigations of such rules even after parties have entered into a private settlement.  Employers are encouraged to review their language policies to determine if they are in compliance with EEOC guidelines.

Will Employers Have to Accommodate Employees Who Test Positive for Marijuana?

On July 17, 2017, the Massachusetts Supreme Judicial Court ruled that under the Massachusetts Anti-Discrimination law an employer may be required to accommodate an employee who is a current user of medical marijuana regardless of the employer’s drug free workplace and drug testing policies.  For a complete discussion on the ruling and tips on how to move forward, please click here.

Nurse’s Disability Discrimination Claims May Proceed to Trial, New Jersey Supreme Court Rules

A registered nurse employed by a New Jersey health care system for approximately 10 years may proceed to a jury trial with her disability and perceived disability claims under the New Jersey Law Against Discrimination, the Supreme Court of New Jersey has ruled. Grande v. Saint Clare’s Health Sys., 2017 N.J. LEXIS 746 (July 12, 2017).  For more information including lessons to be learned from the decision, click here.


When Are Law Firm Partners Not Partners?

The issue of who is a “partner” and thus not an employee continues to vex professional firms.   Layers, doctors, dentists and other professionals often consider themselves non-employees, at least until they suffer an adverse workplace decision.  Then, they may choose to describe their situation as employees, not non-employee owners.  The distinction between employee and “partner” or owner status is a factual one.


A Court recently directed that limited discovery be conducted to explore where the line should be drawn for claims under Title VII and FLSA protection.  Campbell v. Chadbourne & Parke LLP, 16-cv-6832 (Oetken, J.).   Finding that titles are not determinative of “employee” status, the parties were directed to conduct limited discovery as to the long established “Clackamas” factors including:

  • whether the firm can “hire or fire the individual or set the rules and regulations of the individual’s work,”
  • whether the individual reports to someone “higher” in the firm,
  • whether the individual “is able to influence” the firm, and
  • whether “the individual shares in the profits, losses, and liabilities” of the firm.