Notable Cases

In this case that Mr. Dorsey directly worked, a major airline with a hub in Atlanta, GA. via its recruiters, used arbitrary selection factors to determine minimum qualifications to allow applicants for flight attendants to move to the next stage of the hiring process.  Several such factors included a visual assessment of an applicant's hip size and the reading of an emergency safety card.  A regression analysis and a review of the contractor's job description, policies, and procedures determined that there were two steps in the employers hiring process which weeded out specific groups of individuals from the applicant pool.  The employer's recruiters conducted a visual analysis to claim that a flight attendant's hip size might block ingress/egress when a flight attendant sits in the flight seat.  The recruiters also determined that applicants with heavy southern accents would make them incomprehensible to passengers as they read an emergency safety card.  The investigation found that both of these factors were determined to not be bona fide occupational  qualifications (BFOQ) resulting in almost $1 million in backpay and hundreds of future jobs for females.

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NOTE TO EMPLOYERS:  Ensure that any factors that are used to determine minimum qualifications are bona fide occupational qualification (BFOQ) and are directly tied to performing the essential, not marginal functions of a position. Using arbitrary factors based on assumptions and are void of any validity studies or thorough analysis to determine relevancy, must be avoided.  Please also note, that the recent request by the current administration for federal enforcement agencies (ex. EEOC) to disregard the disparate impact theory, does not prevent Complainants from filing in district court.  If you have a concern as to whether your employment practices may cause an adverse (disparate) impact reach out to Dorsey Consulting Group.

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NOTE TO EMPLOYEES/APPLICANTS: As an individual there will be no way to determine if an employers use of a specific factor or factors causes an adverse impact on a particular group of people.  The only way to make this determination is to consult with an experienced organization such as Dorsey Consulting Group to assist in determining if an employers' practices are not job related. 

In this case that Mr. Dorsey directly worked on, the employer refused to allow an applicant to take a physical demands test, after finding out the applicant was taking pain medication.  The original investigation and review of the employers policies and practices resulted in this applicant receiving a substantial lump sump payment and a future job offer.  When the applicant attempted to pursue the future job offer, per the conciliation agreement, the employer, through its occupational medicine provider, refused to allow the applicant to complete the physical demands test, again pointing to the applicants use of pain medication.  Not only was this case a violation of the Rehabilitation Act, but it was also a violation of Title II of the Americans with Disabilities Act due to the occupational medicine providers receipt of federal funding. 

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NOTE TO EMPLOYERS: A third-party occupational medicine provider conducting medical examinations (ex. physical demands test) to your organization has the potential to be found as being a "joint employer" which can make you liable as well.  An employer must not take a "paternalistic" approach to administering a physical demands test or attempt to use the "direct threat" defense.  Additionally, violations of Title II of the Americans with Disabilities Act can be enforced by the Department of Justice. If you have concerns as to whether your process might be in violation, Dorsey Consulting Group is equipped to assist. 

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NOTE TO EMPLOYEES/APPLICANTS: An employer must provide a medical exam to all applicants and employees consistently, barring any disqualifying reasons as indicated on the pre-medical test questionnaire and waiver.  A waiver attempts to indemnify an employer from harm, however in some cases an employer can still be found liable, even when a fully executed waiver exists.  If you have questions on how to proceed with pursuing a medical examination, Dorsey Consulting Group can assist with determining your next steps. 

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