Privacy Issues in the Workplace

b. The FEHA “Safety-of-Others” Test Similar to the ADA’s “direct threat” test, the FEHA permits an employer to refuse to hire an applicant if the applicant, because of his or her disability or medical condition, cannot perform the job’s essential duties without endangering the health or safety of the applicant or the health or safety of others even with reasonable accommodations. Under FEHA, disqualification based upon the threat to an applicant or to others requires an employer to show that the job imposes an imminent and substantial degree of risk to the applicant or to others that cannot be cured by reasonable accommodation. 173

2. C ASE S TUDY ON FEHA “S AFETY -O F -O THERS ” T EST

Equal Employment Opportunity Commission v. United Parcel Service, Inc. 174 Defendant United Parcel Service, Inc. (“UPS”), denied driving positions to certain employees because the employees failed to pass UPS’s “Vision Protocol,” which requires drivers to have some central vision and some peripheral vision in each eye. The employees alleged that UPS had discriminated against them because of their monocular vision, a disability, in violation of the FEHA. The Ninth Circuit found that the employees were sufficiently limited in the major life activities of seeing and working to fall within the FEHA’s broad definition of disability. However, the court ruled in favor of UPS because UPS had demonstrated that the employees would “endanger the health or safety of others to a greater extent than if an individual without a disability performed the job” and, thus, had satisfied FEHA’s safety-of-others defense. The court noted that even a modest increase in the risk that a problem will occur is significant when the potential consequences of that problem are very serious. The court also emphasized that peripheral vision plays an important role in avoiding accidents and that the monocular driver has less opportunity to see a child or any other pedestrian or cyclist or car darting from the impaired side. Finally, the court held that UPS demonstrated that decreased peripheral vision compromises a driver’s ability to perform as safely as compared to a person without that impairment.

3. C ASE S TUDY ON P RE -E MPLOYMENT M EDICAL E XAMINATIONS Norman-Bloodsaw v. Lawrence Berkeley Laboratories 175

Present and former employees, who, as applicants, submitted to a medical examination following a conditional offer, brought suit alleging a violation of the ADA and the right to privacy under the United States and the California Constitutions alleging that the tests performed were neither job-related nor required by business necessity. In the course of the pre-employment physical examinations, the applicants completed medical history questionnaires and provided blood and urine samples. The questionnaires asked, among other things, whether they had ever had any one of approximately 61 medical

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