Privacy Issues in the Workplace

polygraph tests – one before a conditional offer and the other after a conditional offer – so that it could ask medical questions during the polygraph test. 144 Another instance may be where an applicant requests that his or her current employer not be asked for a reference check until a conditional job offer is received. In that instance the potential employer would not be able to obtain the non-medical information (reference check) until the offer is made. 145

An employer faces a steep burden to prove it could not have obtained and analyzed non-medical information prior to making a conditional offer of employment. Once a conditional offer has been made, if the employer is still waiting for non-medical information, the employer should attempt to obtain and evaluate that information prior to conducting any medical examinations or inquiries.

LCW Practice Advisor

3. C ASE S TUDY ON C ONDITIONAL O FFER OF E MPLOYMENT Leonel v. American Airlines 146

Three HIV positive individuals applied to American Airlines for flight attendant positions. After providing written applications and participating in phone interviews, American flew them to the company’s headquarters for in-person interviews. After the interviews, American extended a conditional offer of employment that was conditioned on the results of a background investigation and medical examination. Immediately after making the conditional offers, American representatives directed them to go to American’s medical department for medical examinations. The applicants were required to provide a medical history and blood and urine samples for testing. Despite questions which would have revealed whether they were HIV positive, none of the applicants disclosed that they were HIV positive or that they were taking medications for their condition. However, a blood test revealed that the applicants were HIV positive. As a result, American sent letters to the applicants stating that the conditional offers were being withdrawn. The letters explained that the applicants did not fulfill all conditions in that they “failed to be candid or provide full and correct information.” The applicants sued for violations of the ADA, the FEHA and their constitutional right to privacy. American argued that its hiring process was legal since the company first evaluated the non-medical information and only then considered the applicants’ medical condition. The Ninth Circuit disagreed, holding that medical information cannot be collected or analyzed until after all non-medical information has been evaluated, unless the non-medical information could not reasonably have been obtained. The Court noted other procedures that American could have utilized to complete the background checks prior to the medical exams, such as completing the background checks before the applicants arrived, flying the applicants back at

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 54