the situation
You decide not to hire a job applicant based upon a determination
that he is medically unqualified for the job. He then files a charge
with the EEOC, claiming that you have discriminated against him based on
his actual and perceived disability. About six months later, the
applicant is arrested and charged with possession and intent to
distribute a controlled substance. Does this arrest (which would have
likely prompted his termination had he been an employee) at least limit
the damages available to him even if he could succeed on his claim?
the ruling
Maybe not, at least according to a recent decision by a federal court in New York. Echeverri v. The New York City Dept. of Sanitation, et al, Case
No. 1:15-cv-00080 (S.D.N.Y. February 3, 2016). Philip Echeverri was
looking to be hired by the city’s sanitation department as a sanitation
worker. There were some medical requirements of the job—some of which
were related to the fact that sanitation workers have to work in extreme
weather and are exposed to trauma on the job and have a high rate of
injury. Based on a pre-employment blood test, the department determined
that Echeverri had a hematologic disorder that disqualified him for the
job. Essentially, the department found that Echeverri’s condition and
the treatment for the condition exposed him to a high risk of bleeding
out and difficulty healing which made him unfit for the job in light of
the exposure to significant trauma.
Echeverri thought himself to be in good health and was not even
previously aware of his hematologic disorder. Additionally, he had
obtained a letter from his doctor clearing him for the job (and had
provided that letter to the sanitation department). He disputed his
disqualification with the New York City Civil Service Commission and
also filed a complaint with the EEOC, claiming discrimination under the
ADA. Six months after he filed the charge, he was arrested and charged
with possession and intent to sell a controlled substance and criminal
possession of a controlled substance.
One of the arguments made by the sanitation department was that, even
if Echeverri could succeed on his claim of discrimination, he shouldn’t
be able to recover any damages based on the time period after his
arrest. After all, new sanitation workers have to undergo an eighteen
month probationary period and violation of the department’s policies
prohibiting the sale or use of controlled substances can result in
suspension or termination. Thus, Echeverri would have been fired even if
he had been initially hired.
The court disagreed, finding that this theory was completely
speculative. In fact, the court found, it was just as possible (and just
as speculative) that if Echeverri had been hired by the department, he
would not have resorted to engaging in the conduct that led to his
arrest.
the point
In today’s climate, many employers already feel frustrated by the
resources they are required to devote to defend against what they
perceive to be meritless cases. This case illustrates the breadth of
damages that may be claimed by a prospective employee—and how difficult
it can be to limit those damages, even where the plaintiff engages in
unlawful conduct after his failure to be hired which would have
undoubtedly resulted in his termination.
Originally posted to Virginia Employer Law Blog, by Elaine I. Hogan on February 10, 2016.