What Happened to Mary

Mary sent me a timeline of events, a copy of her EEOC Charge, and the company’s “Statement of Position.”  What I learned was that Mary had been working through a temporary agency at a manufacturing facility.  The facility had offered her a permanent position that included almost double the hourly rate she had been earning as a temp.  She would also get health insurance and other benefits that she did not have previously.  In addition, the facility had a union, so she would have more job protection than a typical “at will” employee in Georgia.

Mary was thrilled at this opportunity and eagerly accepted it.  She was then required to have a “fitness for duty” exam, to ensure she could perform all of the essential functions of the job.  The company sent her to a doctor, who cleared her for the work.   But the paperwork also noted that Mary’s blood pressure was slightly elevated.  The doctor also suggested that she see her primary care physician about the possibility of medication for it.

When the company got the results of the exam, the head of Human Resources withdrew the job offer and terminated Mary’s temporary assignment, claiming she “failed” the fitness for duty exam.   Mary then applied for unemployment (and received it). She also filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) based on disability discrimination.  In response, the company simply stated that the decision to not offer a permanent position to Mary had nothing to do with any alleged disability. 

Why I Suspected Unlawful Withdrawal of A Job Offer

A few things stood out about the company’s statement to the EEOC.  First, it was incredibly vague.  In fact, most employers will provide specific alleged “legitimate” reasons for the way it acted.   But, with respect to Mary, they simply denied her accusation.  Something else that raised an eyebrow was the fact that a company representative wrote to the EEOC directly, but a prominent employment defense attorney in Atlanta was cc’d at the end of the letter.  Why didn’t the attorney write the position statement (which is typically what happens when a company already has counsel retained)??? 

Then it dawned on me – I knew why my colleague referred me to Mary. Several years prior, he had helped me prepare for oral argument before the 11th Circuit Court of Appeals on a very similar issue.   Many people (including lawyers) are not aware that the Americans With Disabilities Act contains specific provisions that govern when employers can conduct “medical examinations and inquiries” and how they can use that type of information.   In Mary’s case, it was lawful for the company to have her get the exam after the job offer was made.  However, what unlawful was the use of information from that exam (i.e., her blood pressure) to withdraw the job offer, when the doctor had certified that she was fit to do the job.

The Resolution

Once I realized what was happening, I quickly reached out to the EEOC Investigator assigned to the case.  I learned that Mary’s Charge of Discrimination was in the process of being dismissed.  I then submitted a letter and scheduled a call.  It became readily apparent that the investigator was not knowledgeable about the particular provisions of the ADA that were at issue. Instead, he was trying to analyze the situation by asking whether Mary’s blood pressure met the definition of a “disability.”   After several rounds of calls and emails, and getting supervisors (including the Atlanta Director) involved, the Charge was reopened.

Then I picked up the phone and called the attorney that the company had cc’d on its position statement.  Since I had litigated a few cases against him over the years, so I was not terribly shocked when he picked up the phone immediately.   What was surprising was his response when I asked if he represented the company.  After confirming, I told him I was representing Mary. His response was “Oh sh*t!  I was wondering what happened at the EEOC for them to reopen the case!  It was you that happened!”  I couldn’t help but laugh.   I replied “something tells me you know your client messed up, given that you didn’t write the position statement.”   Needless to say, he did not deny my statement.

At that point, we started discussing efforts to resolve the case.  While it took a few months, I ended up negotiating a settlement for Mary that was more than she typically made in two years!  In fact, when I met her to deliver the check, she told me that she had to go find a bank and open an account because she finally had a reason to get one!!  That made my year!!