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California Employer Messes Up Pre-Hire Physicals and Pays the Price

The DFEH Director’s complaint alleged that LLUMC subjected a group or class of job applicants to a nerve conduction test to screen out those who have or may have carpal tunnel syndrome or repetitive motion injuries.  The positions that required nerve conduction testing included patient care assistant, referral assistant, phlebotomist, case manager, unit secretary, records representative, practitioner-resident, and financial counselor.  All applicants subjected to nerve conduction tests had passed all other employment tests and interviews.  In some cases, job applicants had already attended LLUMC’s orientation and were ready to start work.  Nonetheless, the hospital rescinded its employment offer to applicants with “failing” test results, even though there was no evidence that they could not perform the essential functions of their jobs.

ELK GROVE, CA – The California Department of Fair Employment and Housing (DFEH) announced the $259,853.96 settlement of an employment disability complaint, on behalf of a class of job applicants, against Loma Linda University Medical Center (LLUMC) for violation of the Fair Employment and Housing Act (FEHA).

“I am pleased that the hospital has agreed to correct its policies and practices,” said DFEH Director Phyllis Cheng.  “Future job applicants will not have to face discrimination for any actual or perceived disabilities.”

The settlement agreement requires LLUMC to pay $259,853.96 to ten claimants.  The agreement also requires the hospital to immediately stop subjecting applicants to any form of nerve conduction testing.  LLUMC will additionally publish an article in its employee newsletter on eliminating and preventing actual or perceived disability discrimination, as well as providing an interactive process to reasonably accommodate current employees and applicants.  The hospital will further develop and revise its policies, train employees, and post the Department’s posters and pamphlets on disability discrimination under the FEHA.

This case was investigated by the Department’s re-established Special Investigation Unit (SIU), which investigates class action, Director’s and complex complaints that may lead to potential precedential decisions.  Since its inception in 2008, the DFEH has filed and resolved several class action and Director’s complaints, which not only included monetary relief for the complainants but also important affirmative relief to prevent countless others from being harmed.

The DFEH is the state agency charged with enforcing California’s civil rights laws.  The mission of the DFEH is to protect the people of California from unlawful discrimination in employment, housing and public accommodations and from hate violence.

Key takeaways offered by our strategic partner, Don Phin of HR That Works!

  1. You may do pre-hire physicals ONLY after you provide a conditional job offer.
  2. The scope of the exam must be tailored to reveal only those limitations that are directly related to the job at hand. In this case, Loma Linda got in trouble because the testing was too broad.
  3. If someone does have a limitation, you are required to begin an accommodation dialogue. (Use to help get that dialogue right).