Massachusetts Employment Law Letter

Danger! Be careful with pre-employment medical exams

Like the federal Americans with Disabilities Act (ADA), Chapter 151B prohibits Massachusetts employers from requiring applicants to submit to a medical examination unless you’ve made a conditional job offer, and then only to determine whether an applicant is capable of performing the essential functions of the job.   Chapter 151B also prohibits discrimination against job applicants on the basis of “perceived” disabilities.  But what does it really mean for an employer to “regard” an applicant as being disabled under the statute, how firm must a job offer really be before you may request a medical exam, and how do courts determine whether the exam was conducted for a permissible purpose?

The Superior Court considered each of these questions in a recent opinion and ruled in favor of the job applicant on all three issues.  The court’s opinion emphasizes the need to proceed with caution when it comes to preemployment medical and psychological examinations.

Three strikes and you’re out!

In 2005, Jill Kavaleski applied to become a police officer with the Boston Police Department (BPD).  She took the civil service exam, submitted the application, and received a conditional offer to join the BPD in 2006, subject to the results of medical and psychological examinations.

The department’s post-offer psychological exams are conducted in three phases.  The applicant takes two personality tests, followed by an interview with a BPD psychiatrist.  Then, if the psychiatrist determines that further review is necessary, the applicant meets with a second BPD psychiatrist.  If the second psychiatrist identifies a condition or disorder falling into one of two categories, the applicant is disqualified.

In January 2006, Kavaleski met with BPD psychiatrist, Dr. Andrew Brown.  He concluded that her responses to the personality tests were so defensive that they were invalid and her profile was consistent with obsessive compulsive personality traits.  He also reported body image and eating concerns, described her as cold and emotionally disconnected, and found that she appeared to be unable to effectively engage with other people.  Kavaleski then proceeded to phase 3 and met with Dr. Julia Reade.

Reade described Kavaleski as thin, subdued, and mildly depressed, with “messy hair.”  She found Kavaleski to be guarded and reported that her thinking was “rigid and concrete.”  Reade opined that that these characteristics would interfere with Kavalski’s ability to communicate effectively with coworkers or discuss her reasons for choosing a particular course of action.  Based on the results of the psychiatric evaluations, the BPD rescinded Kavaleski’s offer.

Over the next 16 months, Kavaleski received two more conditional offers from the BPD and was again disqualified both times at Phase 3 of the psychological exam.  The second time Kavaleski received a conditional offer, Dr. Marcia Scott conducted the Phase 2 interview.  She described Kavaleski as thin, pale, and listless, with “unkempt” hair, and noted that she appeared visibly uncomfortable when asked about her weight and eating habits.  Scott found that Kavaleski had a rigid and avoidant coping style.  At Phase 3, Reade noted that although Kavaleski appeared to be very bright and hardworking, she was significantly limited by her interpersonal manner, her guardedness and her “concrete” way of thinking.

During the third evaluation, Scott concluded at Phase 2 that Kavaleski’s personality test results were defensive.  This time, Dr. Scott described Kavaleski as “even thinner” and “sallow,” again with messy hair and limited self-awareness, only a small understanding of her motivations or emotional limitations, and inflexible approaches to stresses.  The psychiatrist noted that Kavaleski didn’t have effective coping skills for dealing with the stresses she would face in the job of an armed police officer.  At Phase 3, Reade likewise described Kavaleski as thin with messy hair, found her to be stiff and guarded, and considered her thinking to be “extremely concrete.”  She concluded that Kavaleski’s inflexibility, defensiveness, and concrete way of thinking were limiting and likely related to something that Reade called a “characterologic rigidity.”

Although their evaluations certainly weren’t positive, none of the BPD psychiatrists actually diagnosed Kavaleski with a psychiatric condition or disorder.

Appeal to a higher authority

After her third rejection, Kavaleski appealed to the Civil Service Commission, which ruled in her favor, ordered the BPD to put her at the top of the eligibility list, and forbade any of the BPD psychiatrists who had previously evaluated her from conducting her psychological exam.  The City of Boston appealed the decision, but the Massachusetts Supreme Judicial Court upheld the ruling, agreeing with the commission that Reade’s conclusions were subjective and unsupported.  Kavaleski subsequently passed the psychological exam and was accepted into the Boston Police Academy.

Although she ultimately achieved her goal, Kavaleski filed discrimination claims against both the city and Reade alleging disability discrimination and improper hiring practices in violation of Chapter 151B.  Both parties asked the trial court to dismiss the case before trial.  The court’s decision in favor of Kavaleski should serve as a warning to employers that conduct preemployment medical exams.

Perceived disability 

The trial court first considered Kavaleski’s claim that the city had revoked its conditional job offers because it mistakenly perceived her to have a disqualifying disorder or condition that substantially impaired the major life activity of “working.”  The city didn’t dispute that it regarded Kavaleski as having an “impairment,” but it argued that it hadn’t regarded her impairment as substantially limiting her ability to work in general, only her ability to be a Boston police officer.  The BPD noted that she was actively employed at the time she applied to be a police officer and had a history of prior employment.

The trial court didn’t accept the city’s argument.  According to the court, Reade and Scott had concluded that Kavaleski was limited in her ability to analyze situations, make judgments, and relate effectively to other people, characteristics that are essential to many, if not all, jobs.  The trial court also concluded that the doctors’ comments about Kavaleski’s weight, eating habits, and thought processes indicated that they regarded her as being substantially impaired in the major life activities of eating, thinking, concentrating, and interacting with others as well.  The court considered it irrelevant that the psychiatrists’ opinions were subjective and that they didn’t actually diagnose her with anything because they created a “shifting target of fear and speculation” that would be impossible for an applicant to refute.

The court also rejected the city’s argument that it had a legitimate nondiscriminatory reason for disqualifying Kavaleski:  its sincere belief that she was unable to perform the essential functions of an armed Boston police officer.  The court pointed out that the only evidence of that reason was Reade’s testimony before the Civil Service Commission, and neither psychiatrist had cited a single example of how Kavaleski’s perceived impairments would interfere with her ability to do the job.

Unlawful exams

Kavaleski also claimed that the BPD’s psychological screening process violated Chapter 151B’s requirement that preemployment medical exams can only be used to determine whether the employee is capable of performing the essential functions of the job with reasonable accommodation.  She argued that the exams were instead a way to screen out candidates for personal or political reasons.

Under Massachusetts Commission Against Discrimination (MCAD) Guidelines, an employer may require an applicant to submit to a medical or psychological exam only after it has extended a “real” job offer – that is, an offer that is not contingent on anything other than the results of the exam.  That means all non-medical components of the application process, including background checks, credit checks, polygraphs, and interviews, must have been completed before the offer is made.  That way, if an employer rescinds the offer after the medical or psychological exam, the employee knows for certain that the decision was based on the results of the exam.

The court referenced the MCAD Guidelines but ultimately didn’t even consider whether the BPD’s offers to Kavaleski were “real” because it concluded that the exams would have been unlawful regardless.  Specifically, the court held that the exams were unlawful because they led to the city’s erroneous perception that Kavaleski had a disability, and that perception was the basis for her disqualification.  According to the court, this meant the city did not use the exams “solely” to determine whether she could perform the essential functions of a police officer.

The city argued that the exams were lawful because they were “job-related and consistent with business necessity,” but again, the court disagreed.  Whether the purpose of the exams were job-related or consistent with business necessity didn’t matter unless the exam revealed an actual disability.  Because the BPD’s exams didn’t result in any diagnosis, their only purpose was to create an “erroneous perception of a handicap.”

Three-headed monster for employers

If it stands, the Kavaleski decision could have serious ramifications for employers.  First, the opinion indicates that an employer may be guilty of “regarding” a job applicant as having a disabling impairment based on conclusions and even simple commentary about the applicant’s appearance, personality traits, and communication skills – factors employers routinely consider and evaluate, not just as part of psychological tests, but as part of personality tests and even during ordinary job interviews.  Indeed, the fact that the BPD didn’t formally diagnose Kavaleski as having a specific condition or disorder only bolstered the Court’s conclusion that it had regarded her as disabled.

Second, the decision clarifies that you may not require an applicant to undergo a medical or psychological exam – even if you have extended a conditional job offer – until after you have completed your evaluation of all other criteria and provided the applicant with the results of these other contingencies before the medical or psychological exam.  Otherwise, the conditional offer of employment may not be regarded as “real” for purposes of Chapter 151B.

Finally, and perhaps most important, the Kavaleski decision suggests that the validity of an employer’s reasons for requiring an applicant to undergo a medical or psychological exam may depend on the results of that exam.  In other words, if the exam reveals a true disqualifying handicap, it will be found lawful so long as the exam’s sole purpose was to evaluate the applicant’s ability to perform the essential functions of the position and the criteria used to make that evaluation were both job-related and consistent with business necessary.  But if the exam instead leads to the erroneous perception of a disability and you reject the applicant based on that perception without a diagnosis or any opinion by the physician about whether the diagnosis would affect her ability to perform the essential functions of the job, the exam may be unlawful regardless of why you required it and what its selection criteria were.  Boston Police BPD v. Kavaleski, et al. (Mass. Sup. Ct. 2014).

Takeaways

If your company requires applicants to undergo any type of medical or psychological exam – or even just evaluates personality, cognitive, and other subjective criteria as part of its hiring practices – Kavaleski may increase your legal risk.  If you fall into either of those categories, you may want to review your hiring practices and selection criteria, including the design and administration of any medical or psychological test, to eliminate inquiries that are of limited utility or are unnecessarily risky.  At a minimum, you should make employees involved in hiring aware of the Kavaleski decision and consider updating your policies, practices, and any written guidelines to distinguish between permissible and impermissible inquiries.

As always, your employment attorney may be a helpful resource in evaluating your company’s risk and what steps you can take to reduce that risk.