B&D sued after it rescinds job offer

Applicant failed medical test, claims ADA violation

October 16, 2007|By Allison Connolly | Allison Connolly,SUN REPORTER

Victor Breehne thought he had a job with Black & Decker Corp. all sewn up.

He said the Towson-based power tools manufacturer made him an offer. All he had to do was pass a medical exam.

But Breehne alleges the offer was rescinded because he flunked a "nerve conduction study" the company uses to predict if a person is likely to develop carpal tunnel syndrome, an often-disabling wrist and hand injury caused by repetitive motion. He has filed a class action suit in federal court in Tennessee, claiming the company violated the Americans with Disabilities Act.

The U.S. Equal Employment Opportunity Commission has challenged the use of such tests, which aren't uncommon in manufacturing settings, on ADA grounds. But it lost a federal lawsuit in 2001 against Rockwell Automation Inc. after that company denied jobs to 72 applicants at an Illinois plant.

The EEOC believes the test does not reliably predict whether a person is going to develop such an impairment, and whether it would pose an imminent threat to the person's safety, said Chris Kuczynski, assistant legal counsel and director of the ADA policy division at EEOC.

The agency argued in the Rockwell case that the company violated ADA because it discriminated against the applicants for having a perceived impairment. But the Seventh U.S. Circuit Court of Appeals ruled that to prove the applicants were disabled, the EEOC would have had to show the applicants would not be able to get similar jobs in the region because of their impairment. Rockwell successfully argued that it did not perceive the applicants to have a disability.

Black & Decker declined to comment on Breehne's lawsuit, which is typical with litigation, said spokesman Roger Young.

Last year, Breehne applied for a job at a Black & Decker plant in Jackson, Tenn., that manufactures Porter Cable brand power tools. In the court filing, he said that the company made him an offer contingent on passing a medical exam.

For the nerve conduction study, a doctor under contract to the company stimulated the median and ulnar nerves, which control muscles in the hand, and measured the responses, the filing said. After his test, the doctor concluded it would be inappropriate for Breehne to work in a "highly wrist-sensitive job," the filing said.

Robert Kellner, an attorney who specializes in labor law, said it is not uncommon for job offers to be rescinded based on a medical exam.

"It's legal if the test shows the individual can't perform the essential functions of the job," said Kellner, chair of the labor and law practice at Gordon Feinblatt Rothman Hoffberger & Hollander LLC in Baltimore.

Kellner, who is not involved in this case, said candidates can also be rejected if the doctor determines the job would jeopardize the health and safety of the applicant and other employees. He said an employer must establish through objective, medical evidence that there is a significant risk that substantial harm could occur in the workplace.

Breehne is represented by the firm Gilbert & Russell in Jackson, Tenn., which did not respond yesterday to a call seeking comment.

allison.connolly@baltsun.com

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