Variety store retailer Dollar General recently agreed to settle an Equal Employment Opportunity Commission (EEOC) lawsuit for violations of the Americans with Disabilities (ADA) and Genetic Information Non-Discrimination Acts (GINA). The $1 million dollar settlement is a cautionary tale for those employers who require applicants to pass pre-employment medical exams. It is also an important reminder that employers remain liable for the acts of third-party vendors who assist in screening applicants.

According to the lawsuit, after making job offers to work at its Bessemer, Alabama Distribution Center, Dollar General required applicants to pass a pre-employment medical exam during which they were required to divulge past and present medical conditions of family members such as cancer, diabetes, and heart disease. The EEOC further alleged that the retailer used qualification criteria that screened out qualified individuals with disabilities. For example, rescinding job offers to applicants whose blood pressure exceeded 160/100 or who had less than 20/50 vision in one eye, even when those impairments did not prevent the applicants from safely performing the job.

Dollar General’s actions highlight what can happen when concerns about an individual’s ability to perform a physically demanding job exceeds legal boundaries. For example, protecting applicants/employees from discrimination based on an actual or perceived disability and from answering invasive questions about medical conditions of their grandparents, parents or children.

Employers who use pre-employment medical exams should keep the following key points in mind:

• Employers requiring pre-employment medical examinations must be sure that assigned medical examiners do not request family medical histories and that medical opinions of an applicant’s personal physician are always considered when/if presented.
• Employees involved in the hiring process should be familiar with state and federal laws governing an employer’s duty to engage in a timely, good faith interactive process to determine if a reasonable accommodation is needed.
• Employers are prohibited from denying employment solely based on stereotypes about the abilities of individuals with certain impairments.
• Employers should comply with all notice/posting mandates advising applicants/employees of their rights, including how to file a charge of discrimination with the appropriate state or federal authority.