American Airlines extended offers of employment to several applicants for flight attendant positions which the Company conditioned on their passing background checks and medical examinations. Applicants were all HIV positive; however, they did not disclose this information during their medical examinations. Blood tests administered in connection with the medical examination revealed that Applicants were HIV positive. American withdrew its conditional offers of employment, citing the Applicants’ failure to disclose this information during the medical examinations. The Applicants sued, claiming, among other things, that the medical examinations violated the ADA and FEHA.

The Court stated that in order to issue a "real" offer under the ADA and FEHA, an employer must have either completed all non-medical components of its application process or be able to demonstrate that it could not reasonably have done so before issuing the offer. The Court concluded that American had not extended “real” offers of employment because: (1) its offers to the Applicants were contingent not just on the Applicants successfully completing the medical component of the hiring process but also on the completion of a critical non-medical component: undergoing background checks, and (2) American failed to establish that it could not reasonably have completed the background checks before subjecting the Applicants to medical examinations.

The Court rejected American’s argument that even if the offers were not “real”, the Company did not violate the ADA or FEHA because it evaluated the Applicants’ non-medical information before it considered their medical information. The Court stated that the statutes regulate the sequence in which employers collect information, not the order in which they evaluate it.

This case highlights the importance of conducting prospective employees’ medical examinations only after all other contingencies (such as completion of background checks, etc.) have been lifted. Timing is everything!

The Rule does not proscribe a specific method for destruction of records. However, the following methods should comply with the Rule: (1) implementing and monitoring compliance with policies and procedures that require burning, pulverizing, destroying, or shredding of papers containing consumer information; (2) implementing and monitoring compliance with policies and procedures that require erasing electronic media containing such information; and (3) contracting with a third party to dispose of consumer information in a manner consistent with the Rule (and monitoring performance of such disposal).

What does this mean for employers? Employers who obtain consumer reports for employment screening purposes or otherwise obtain personal information about employees from consumer reports must either implement policies to adequately dispose of such consumer information or contract with a third party to do it.

A.     Summary

B.     Applicant Testing

C.     Employees Not in Safety -Sensitive Positions

The California Supreme Court did invalidate a city's suspicion-less drug testing program for employees who were promoted. Loder v. City of Glendale (Cal. S.C. 1997). The court ruled that testing current employees without reasonable suspicion violated the Fourth Amendment (which applies only to a government employer, but not a private sector employer). Although the court did not reach the privacy issue under Article One, Section One of the California Constitution, the court presumably would have reached the same conclusion on the basis of the state constitution (which does apply to all California private employers). The Loder decision also implied that it would approve of reasonable suspicion testing for employees not in safety-sensitive positions. The court observed:

"If a current employee's performance and work record provides some basis for suspecting that the employee presently is abusing drugs or alcohol, the employer will have an individualized basis for requesting that the particular employee undergo drug testing, and current employees whose performance provides no reason to suspect that they currently are using drugs or abusing alcohol will not be compelled to sustain the intrusion on their privacy inherent in mandating urinalysis testing."

D.     Employees in Safety Sensitive Positions

In Fresno Irrigation District, the construction maintenance worker position was found to be safety sensitive for the following reasons:

1. the construction maintenance worker operated power tools and heavy equipment (including a sloper and a boom) in close proximity to co workers;


2. in order to make repairs, the construction maintenance worker had to crawl through as much as a half mile of pipe where injury from collapse, gas fumes, water and debris presented high potential for injury, especially if a drug impaired employee became disoriented or claustrophobic;


3. as a "top man," the construction maintenance worker's responsibility for the safety of his pipecrawling partner required no drug impairment that would significantly increase the risk of injury (from an inappropriate and/or untimely response) to a pipecrawler in an already hazardous position; and


4. almost all work was performed in or around trenches involving the ever present danger of collapse or falling into the trench.

E.     Miscellaneous Obligations

Whatever testing the company chooses to adopt, the program must be supported by an appropriate policy, procedures, forms, and management training.