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BY: Jason J. Thompson | IN: Employment Law
According to a recent decision from the U.S. Sixth Circuit Court of Appeals, requiring an employee to undergo a medical examination when it is not reasonably related to work performance may properly subject the employer to claims of gender discrimination.
Emily Kroll worked as an emergency medical technician for White Lake Ambulance Authority, demonstrating superior job performance throughout her tenure with the company. In 2008, Kroll had an affair with a married co-worker, and when the relationship ended, the breakup caused her to have troubles at work. Concerned about Kroll’s sexual behavior and her “mess of a life,” her manager asked her to seek counseling, but would not pay for it. When Kroll refused because she could not afford it, she did not return to work, and filed a lawsuit against White Lake in 2009 alleging that the requirement to see a therapist constituted gender discrimination in violation of the Americans with Disabilities Act (ADA).
The decision, reported on Law360 (subscription required), is the latest in a series of rulings and appeals. The Sixth Circuit initially heard the case in 2010 when it was asked to decide if the counseling was considered a medical exam under the ADA; the ADA prohibits employers from requiring medical exams unless they are job-related and consistent with a business necessity. The panel found that because the employer had meant to identify and treat the plaintiff’s suspected depression, the counseling qualified as a medical exam permitted by the ADA, and remanded the matter to the trial court. The trial court again ruled in White Lake’s favor, finding that the required counseling was job-related, and Kroll filed another appeal.
The panel’s recent decision in the plaintiff’s favor focused on the intentions of Kroll’s manager:
[The] open admission that an employer ordered a medical examination based on moralistic condemnation of an employee’s private behavior is troubling, to say the very least. A jury could easily conclude from [the supervisor’s] own testimony that he did not base a conclusion that Kroll posed a direct threat on a reasonable medical judgment.
Kroll’s manager admitted that he had personal concerns about the direction of her life, and there was evidence that he required other former employees to seek counseling for sexual behavior of which he disapproved.
Consequently, the case was again remanded to the lower court for additional proceedings consistent with its ruling.
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Jason Thompson is a nationally board certified trial attorney and co-chairs Sommers Schwartz’s Complex Litigation Department. He has a formidable breadth of litigation experience, including class action and multidistrict litigation (MDL), and practices nationwide in both state and federal courts.