EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. BNSF RAILWAY COMPANY, Defendant-Appellant.
No. 16-35457
D.C. No. 2:14-cv-01488-MJP
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
August 29, 2018
Opinion by Judge Gould
Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, Senior District Judge, Presiding
Argued and Submitted February 8, 2018 Seattle, Washington
Filed August 29, 2018
Before: Raymond C. Fisher, Ronald M. Gould, and Richard A. Paez, Circuit Judges.
Opinion by Judge Gould
SUMMARY*
Americans with Disabilities Act
The panel affirmed the district court‘s judgment imposing liability on BNSF Railway Company under the Americans with Disabilities Act (“ADA“); vacated the nationwide injunction that prohibited BNSF from engaging in certain hiring practices; and remanded with instructions for the district court to apply the traditional four-factor test to determine whether to issue a permanent injunction, and if so, the scope of the injunction.
Russell Holt received a conditional job offer from BNSF for the position of Senior Patrol Officer contingent on Holt‘s satisfactory completion of a post-offer medical review. BNSF demanded that Holt submit an MRI of his back at his own cost, which he could not afford. BNSF revoked Holt‘s job offer, and the Equal Employment Opportunity Commission sued BNSF for violations of the ADA.
The panel held that the EEOC demonstrated all three elements of a
The district court held that it could grant an injunction to the EEOC by statute, without looking to the four-factor test for injunctive relief. The panel held that it need not, and did not, decide whether the standard four-factor test for injunctive relief was required in the Title VII/ADA context, because even if the four-factor test applied, that test would be satisfied. Namely, the panel held that Holt suffered an irreparable injury, the remedies at law were inadequate, and the balance of equities, and the public interest weighed in favor of an injunction. The panel concluded that the district court properly entered an injunction.
The panel held that the district court must make further factual findings to support the scope of the injunction; and remanded for the district court to establish the proper scope of the injunction.
COUNSEL
Bryan P. Neal (argued) and Stephen F. Fink, Thompson & Knight LLP, Dallas, Texas; Kenneth J. Diamond, Winterbauer & Diamond PLLC, Seattle, Washington; for Defendant-Appellant.
Susan Ruth Oxford (argued), Attorney; Margo Pave, Assistant General Counsel; Jennifer S. Goldstein, Associate General Counsel; James L. Lee, Deputy General Counsel; U.S. Equal Employment Opportunity Commission, Washington, D.C.; for Plaintiff-Appellee.
John R. Annand and Rae T. Vann, NT Lakis LLP, Washington, D.C.; Kathryn Comerford Todd and Warren Postman, U.S. Chamber Litigation Center Inc., Washington, D.C.; for Amici Curiae Equal Employment Advisory Council and Chamber of Commerce of the United States of America.
Jeffrey L. Needle, Law Offices of Jeffrey L. Needle, Seattle, Washington; Jesse Wing, MacDonald Hoague & Bayless, Seattle, Washington; for Amicus Curiae Washington Employment Lawyers Association.
GOULD, Circuit Judge:
Russell Holt received a conditional job offer from BNSF Railway Company (“BNSF“) for the position of Senior Patrol Officer, contingent on Holt‘s satisfactory completion of a post-offer medical review. During that medical review, Holt disclosed that he had injured his back four years before, suffering a two-level spinal disc extrusion. Holt‘s primary care doctor, his chiropractor, and the doctor BNSF‘s subcontractor hired to examine Holt all determined that Holt had no current limitations due to his back and found no need for follow-up testing. Yet as an effective condition to consider him further for the job, BNSF demanded that Holt submit an MRI of his back—at his own cost—or it would treat Holt as having declined the offer. Holt was in bankruptcy at that time and did not obtain an MRI. As a result, BNSF revoked Holt‘s job offer.
The district court concluded that BNSF‘s actions violated the Americans with Disabilities Act of 1990 (“ADA“),
I
In June 2011, Holt applied for a job with BNSF as a Senior Patrol Officer. BNSF describes the job duties of a Senior Patrol Officer as “essentially the same” as a city police officer: Patrol Officers protect the safety of people and property, prevent and respond to criminal activities, and arrest suspects, among other duties. At the time he applied to work for BNSF, Holt was working as a criminal investigator in the Pulaski County Sheriff‘s Office in Little Rock, Arkansas, where he had worked for five years. After interviewing Holt, BNSF extended him an offer of employment—contingent upon him passing a background check and satisfactorily completing a post-offer medical exam.
BNSF contracts with Comprehensive Health Services (“CHS“) to coordinate its medical evaluations nationwide. CHS requires applicants to take a strength test, have a basic physical examination, complete the CHS medical questionnaire, submit to a clinical exam, answer any follow-up questions, and potentially undergo a targeted medical examination. For any cases in which the decision to clear or reject an applicant is not routine, BNSF‘s medical department, not CHS, decides whether an applicant is medically qualified.
Holt proceeded through CHS‘s evaluation process. In his health questionnaire, Holt disclosed that he had injured his back in 2007 and suffered back pain as a result. An MRI had shown that he had a two-level disc extrusion, meaning that the nucleus pulposus had escaped from two of his spinal discs. In layman‘s terms, this was described as the “jellylike material” inside two of Holt‘s spinal discs having been pushed out of the discs and into the spinal column. A follow-up MRI in 2009 showed that one of Holt‘s spinal discs had broken off, and a chunk of that spinal disc was then floating in Holt‘s spinal canal.1 After his back injury, Holt had regularly visited a chiropractor for “maintenance.”
Holt also suffered from knee pain in March 2011, as well as some associated back pain, which led him to see his primary care doctor, Dr. Richard Heck. Dr. Heck stated that an MRI of Holt‘s knee might be warranted, but one was never ordered, and Holt‘s knee and back pain appears to have resolved with medication, chiropractic care, and physical therapy.
On September 21, 2011, the day after Holt submitted his questionnaire disclosing his prior back injury, a CHS nurse called him with more questions about his back. Holt told her that he had kept the same job after his back was injured and that he had no current back issues. The nurse asked him to submit his medical records relating to his back. Within a week, Holt had submitted his medical records; a letter from his chiropractor stating that Holt had responded well to care; the 2007 MRI; and a note from Dr. Heck—who had just reexamined Holt that week—stating that Holt had no current back problems and had functioned normally since 2009.
CHS‘s subcontractor, Concentra, then assigned Dr. Marcia Hixson to conduct a medical exam of Holt. Dr. Hixson was informed generally of Holt‘s prior back injury,2 and she said that she looked at his back a “little more closely” than usual as part of her “very thorough” exam. Dr.
CHS then sent its medical file on Holt to BNSF for additional review. BNSF‘s Medical Officer, Dr. Michael Jarrard, reviewed Holt‘s file. Dr. Jarrard decided that he wanted additional information before he made an informed decision about whether Holt could perform the Senior Patrol Officer job. Specifically, on November 11, 2011, Dr. Jarrard requested (1) a current MRI and radiologist‘s report on Holt‘s back, (2) Holt‘s pharmacy records for the past two years for prescriptions related to treatment of Holt‘s back pain, and (3) any other medical records for Holt from the prior two years, including chiropractic notes. Dr. Jarrard stated that he wanted this information because—although Holt reported no current symptoms and all the reviewing doctors had agreed that he could perform the job—Dr. Jarrard was concerned that there was an underlying pathology that might disqualify Holt from the job. Dr. Jarrard told CHS to tell Holt that the additional information was necessary “due to [the] uncertain prognosis of [Holt‘s] back condition.”
What happened next is the subject of some dispute between the parties. But based on the record, this picture emerges: In November, Holt contacted Dr. Heck‘s office and stated that he needed an MRI for his job application with BNSF. It is not clear whether Holt spoke directly with Dr. Heck about this request, although it appears likely that he did. In any event, it is uncontroverted that Holt at least spoke with Dr. Heck‘s office about getting an MRI and was told that because he was not currently in pain, the MRI was not medically necessary and so would not be covered by his insurance. An employee from Dr. Heck‘s office followed up to tell Holt that the office had checked with Holt‘s insurance company, and the insurance company had confirmed that it would not cover the MRI.
Holt then investigated paying out-of-pocket for the MRI, and was told it would cost more than $2,500 to obtain an MRI without a doctor‘s referral. Holt was in bankruptcy at the time of his job application. Holt states that he could not afford to pay for an MRI, an allegation BNSF disputes. We do not rely on Holt‘s representation about his inability to pay in arriving at our holding here. It is not disputed that Holt told BNSF about the high cost of the MRI and that BNSF responded that he was expected to bear the cost of the MRI himself.
After some back-and-forth communications with BNSF in which Holt asked to have the MRI requirement waived, he was told that without the MRI he would not be hired. Holt did not obtain an MRI,3 and so on December 15, 2011, BNSF designated Holt as having declined the conditional job offer.4
Holt next filed a charge with the Equal Employment Opportunity Commission
The district court granted the EEOC‘s motion for partial summary judgment, and denied BNSF‘s motion. Although the district court had held in denying BNSF‘s motion to dismiss that the EEOC could bring its claim under
The district court held that the EEOC could, however, make out a “generic
The parties then reached an agreement on the amount to be awarded for damages, although BNSF did not waive its appellate rights. The district court adopted the damages agreement.
Subsequently, the parties briefed the issue of injunctive relief, and the district court entered a nationwide injunction. The district court concluded that because it found BNSF to have purposefully engaged in an unlawful employment practice and BNSF had expressed no intention of changing its behavior, by statute injunctive relief against BNSF was authorized under
II
We review de novo the district court‘s ruling on cross-motions for summary judgment. Guatay Christian Fellowship v. Cty. of San Diego, 670 F.3d 957, 970 (9th Cir. 2011). We can consider together the denial of BNSF‘s motion for summary judgment and the grant of the EEOC‘s motion for summary judgment. See Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1124 (9th Cir. 2002). “Summary judgment is appropriate if there is no genuine dispute of material fact viewing the evidence in the light most favorable to the nonmoving party.” Folkens v. Wyland Worldwide, LLC, 882 F.3d 768, 773 (9th Cir. 2018) (internal quotation marks and citation omitted).
We review for abuse of discretion the district court‘s decision to grant a permanent injunction, but review de novo the district court‘s legal conclusions underlying
III
Under the ADA, employer medical inquiries are divided into three categories, each with different rules: (1) inquiries conducted before employers make offers of employment; (2) inquires conducted “after an offer of employment has been made but prior to the commencement of employment duties (‘employment entrance examinations‘)“; and (3) inquiries conducted at any later point. Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1273 (9th Cir. 1998) (alterations and quotation marks omitted); see also
“Unlike examinations conducted at any other time, an employment entrance examination need not be concerned solely with the individual‘s ‘ability to perform job-related functions,’
Under
A.
We first consider whether Holt had a disability within the meaning of the ADA. See Clark Cty. Sch. Dist., 727 F.3d at 955. The EEOC contends that BNSF “regarded” Holt as having a disability. Under the ADA, a person with a “disability” is defined to include an individual who is “regarded as having” an impairment.
An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
The parties agree that for BNSF to have regarded Holt as having a disability, BNSF must have regarded him as having a current impairment. This reading comports both with the statutory text, which prohibits discrimination on the basis of an “actual or perceived impairment” in the present tense,
By regulation, the EEOC has defined an impairment as “[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems.”
BNSF argues that it did not perceive Holt to have an impairment; its Medical Officer was simply unsure of the state of Holt‘s back and so sought more information. BNSF cites Lanman v. Johnson County, 393 F.3d 1151 (10th Cir. 2004), for the proposition that merely asking for an exam does not suggest that an employer perceived an employee to have an impairment. The EEOC argues that BNSF actually knew Holt had a current impairment because Holt‘s disc extrusion was a permanent condition. The EEOC points to Dr. Jarrard‘s deposition, during which he was asked whether “a disc extrusion, the material within the vertebra, ever regenerate . . . or be restored?” Dr. Jarrard answered, “No.” The EEOC argues that because the nucleus pulposus would never be restored, Holt had an ongoing impairment, of which BNSF was aware.
First, BNSF‘s citation to Lanman is not persuasive. There, Lanman was a county sheriff‘s deputy. Id. at 1153. After receiving several reports that Lanman had behaved in a troubling manner, the county placed her on leave pending the outcome of a psychiatric evaluation. Id. at 1153–54. Lanman argued that she had been discriminated against in violation of the ADA. Id. at 1154. The Tenth Circuit disagreed. Id. at 1157. The court questioned whether Lanman had shown that the county perceived her as having an impairment, and cited the ADA for the proposition that an employer may “order a medical exam when it is ‘shown to be job-related and consistent with business necessity.‘” Id. (quoting
Lanman is not helpful here, because the principal basis of its holding has been superseded by statute. The ADA no longer requires a showing of a substantially limiting impairment, following the 2008 enactment of the ADAAA. Compare
Second, we decline to parse the nature of Holt‘s medical condition. Whether or not Holt‘s disc extrusion was a permanent condition is irrelevant here. In requesting an MRI because of Holt‘s prior back issues and conditioning his job offer on the completion of the MRI at his own cost, BNSF assumed that Holt had a “back condition” that disqualified him from the job unless Holt could disprove that proposition. And in rejecting Holt‘s application because it lacked a recent MRI, BNSF treated him as it would an applicant whose medical exam had turned up a back impairment or disability. BNSF chose to perceive Holt as having an impairment at the time it asked for the MRI and at the time it revoked his job offer.
BNSF cannot hide behind its argument that there was some uncertainty as to the actual state of Holt‘s back when it assumed that Holt had a back condition that disqualified him from the Senior Patrol Officer job. Construing the definition of “perceived impairment” to encompass situations where an employer assumes an employee has an impairment or disability is consistent with the ADAAA‘s mandate that “the definition of disability . . . be construed in favor of broad coverage of individuals under [the ADA], to the maximum extent permitted by the terms of [the ADA].” See
B
We next address whether BNSF discriminated against Holt because of his perceived impairment. See Clark Cty. Sch. Dist., 727 F.3d at 955. Specifically, we consider whether it was permissible for BNSF to condition Holt‘s job offer on Holt obtaining an MRI at his own expense. This is not how the EEOC frames the discriminatory act—it instead refers to the “rescission of [Holt‘s] job offer” and focuses on the argument that Holt was unable to complete the testing process. But the key question, as we see it, is whether BNSF was entitled to condition Holt‘s continuation through the hiring process on Holt providing an MRI at his own cost. If BNSF was entitled to do this, then disqualifying Holt because he failed to cooperate in the completion of the medical screening process, whatever the reason he could not complete the process, was likely permissible. Cf. Roberts v. City of Chicago, 817 F.3d 561, 565–66 (7th Cir. 2016) (finding no ADA violation where plaintiffs were not hired because the first eleven applicants to complete medical testing were hired, and plaintiffs were delayed in completing the medical testing because they were required to go through additional screening because of their disabilities); Leonel v. Am. Airlines, Inc., 400 F.3d 702, 709 n.13 (9th Cir. 2005) (“We do not suggest that, when a medical examination is conducted at the proper time and in the proper manner, an applicant has an option to lie, or that an employer is foreclosed from refusing to hire an applicant who does.“); Garrison v. Baker Hughes Oilfield Operations, Inc., 287 F.3d 955, 961 n.5 (10th Cir. 2002) (suggesting that it is permissible to fire an applicant for lying on a medical questionnaire); EEOC v. Prevo‘s Family Mkt., Inc., 135 F.3d 1089, 1097 (6th Cir. 1998).
The ADA prohibits discrimination “in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
BNSF, however, argues that
A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination.
BNSF further points out that the EEOC‘s 1995 Enforcement Guidance states that follow-up exams are permissible so long as they are “medically related to previously obtained medical information.” This would appear to be a necessary implication of allowing employers to conduct medical examinations—it would be an odd and incomplete medical exam that could not include follow-up inquiries or testing based on red flags raised in the initial exam. But this does not support BNSF‘s position that the prospective employee may be forced to shoulder the cost of such follow-up exams.
It is true that follow-up exams will frequently be required of people with disabilities or impairments because they have disabilities or impairments. But this additional burden is implicitly authorized by
BNSF argues that because the ADA allows an employer to “require a medical examination” and not to merely “give” or “request” one, the ADA empowers employers to force applicants to pay for the costs any of testing. BNSF reads too much into the word “require.” Here, “require” is properly understood to mean that an employer can compel a medical exam, and that a conditionally hired person‘s participation in the medical exam is not optional. See Requirement, Black‘s Law Dictionary (10th ed. 2014) (“[s]omething that must be done“). But the word “require” indicates nothing about who must bear the costs of any medical testing. Accordingly, we hold that the standard anti-discrimination provision of the ADA and the ADA‘s policy
An employer would not run afoul of
In short, requiring an applicant to pay for follow-up testing is distinct from merely requiring an additional exam for a person with a disability if an additional exam is necessary to complete the medical examination contemplated in
Further, elsewhere the ADA puts the financial burden on employers. The ADA requires employers to pay for reasonable accommodations unless it is an undue hardship—it does not require employees to procure reasonable accommodations at their own expense.
Additionally, requiring employers to bear the costs of this testing would discourage
BNSF also argues that the EEOC did not show that BNSF acted with a discriminatory motive, or that BNSF‘s justifications for its behavior were pretextual. But as we have held en banc, where it is clear that an action was taken because of an impairment or perception of an impairment, no further inquiry or burden-shifting protocol is necessary to establish causation. See Bates v. United Parcel Serv., Inc., 511 F.3d 974, 988 (9th Cir. 2007). Here, there is no question that BNSF conditioned Holt‘s job offer on Holt obtaining an up-to-date MRI of his back because of BNSF‘s assumption that Holt had a back impairment. No further causation inquiry is necessary.
C
The final element that we must consider on the
That BNSF does not contest this element is telling. Effectively, BNSF has conceded that the medical information it had on Holt at the time it rejected him demonstrated that Holt could perform the Senior Patrol Officer job—yet BNSF still demanded that Holt procure an MRI at his own expense. This is not a case where the medical information previously adduced had been disqualifying and BNSF had provided Holt one last chance to show his ability to perform the job. In such a case,
We conclude that the EEOC has demonstrated all three elements of a
IV
BNSF argues that the district court erred in issuing its injunction, both because it applied the wrong legal standard and because it could not issue a nationwide injunction. BNSF argues that controlling Supreme Court authority required the district court to use the standard four-factor test—which considers (1) whether a plaintiff has suffered an irreparable injury, (2) whether remedies available at law are inadequate to compensate for that inquiry, (3) the balance of hardships, and (4) the public interest—before issuing a permanent injunction. See eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). In recent years, the four-factor test has commonly been applied by the Supreme Court to assess the propriety of injunctive relief. See id.; Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010).
The district court held that it could grant an injunction to the EEOC by statute, without looking to the four-factor test. It reached this conclusion because the ADA authorizes any person who proves an ADA violation to seek the remedies provided for in Title VII of the Civil Rights Act of 1964. See
We need not and do not decide today whether eBay and Monsanto require the application of the four-factor test in the Title VII/ADA context because we determine that even if the four-factor test is applied, that test would be satisfied here. See Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1044 (9th Cir. 2012). First, if BNSF continued its practice, Holt and others like him would suffer the dignitary harm of being falsely told that their disability or perceived impairment rendered them unfit for certain work. See Nelson v. Nat‘l Aeronautics & Space Admin., 530 F.3d 865, 882 (9th Cir. 2008), rev‘d on other grounds, 562 U.S. 134 (2011) (“[T]he loss of one‘s job does not carry merely monetary consequences; it carries emotional damages and stress, which cannot be compensated by mere back payment of wages.“). The harms a person suffers when denied a job on the basis of a disability are “emotional and psychological—and immediate.” Chalk v. U.S. Dist. Court Cent. Dist. of Cal., 840 F.2d 701, 710 (9th Cir. 1988). And we are satisfied that these harms constitute irreparable injury. See id. Relatedly, while Holt can receive back pay and reinstatement at law, no legal remedy can fully right the wrong of such a dignitary affront. See id. We thus conclude that the second factor—insufficient remedies at law—is satisfied here too.
Further, preventing BNSF from continuing to discriminate in its hiring practices does not result in any hardship to BNSF; BNSF is merely being forced to stop doing what it is not entitled to do. By contrast, absent an injunction, those with disabilities or perceived disabilities who receive conditional offers from BNSF will face serious hardship: they will either be deprived of a job on the basis of their disability, or else forced to pay large sums out of their own pocket for additional testing. The third factor is therefore satisfied. Finally, the public interest—the fourth factor—is served by preventing employment discrimination. See Gen. Tel. Co. of the Nw. v. Equal Emp‘t Opportunity Comm‘n, 446 U.S. 318, 326 (1980) (“When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.“). We agree with the district court and hold that its injunction was appropriately entered here.
However, we agree with BNSF that the district court must make adequate factual findings to support the scope of the injunction. See City & Cty. of S.F. v. Trump, No. 17-17478, 2018 WL 3637911, at *12–13 (9th Cir. Aug. 1, 2018). We observe preliminarily that there are some reasons to support an injunction like that previously entered here. Although BNSF operates in dozens of states, its medical screening decisions are made out of a central medical office in Texas. Holt‘s own case demonstrates the difficulty of imposing a geographic constraint of the sort BNSF advocates: Holt lived in Arkansas at the time of his application, applied for a position in Washington, and was rejected at the direction of employees in BNSF‘s Texas office.13 But the district court did not make factual findings or articulate its reasoning, and so we cannot yet properly review the scope of the injunction. Whether an injunction should be entered in exactly the form and scope of the injunction previously entered by the district court depends on the further review and findings to be made by the district court on remand.
We therefore vacate the injunction and remand for the district court to make further factual findings in order to establish the proper scope of the injunction.
Each party shall bear its own costs on appeal.
AFFIRMED in part; VACATED in part and REMANDED.