Excerpted from a Governing.Com Blog by Bob Egelko

California bars employers from asking job applicants about their physical or mental health, at least until they’ve been offered a job. But an occupational health company requires job-seekers with thousands of California businesses to disclose, for example, whether they’ve had venereal disease, diarrhea, constipation or menstrual problems.

On March 16, a federal appeals court asked the state Supreme Court whether the ban on intrusive medical questioning applies to an employer’s agent, such as a job-screening company. The order was issued in a proposed class-action suit on behalf of about 500,000 job applicants in the last four years, according to their lawyers.

“California has millions of employees who could be impacted by a decision defining the scope of liability for business entities acting as agents of their employers,” the three-judge panel said in an order referring the issue to the state’s high court.

One of the millions is Kristina Raines, who applied for a job handing out meals to needy households for a San Diego company called Front Porch Communities. The company said she could go to work after completing a medical screening exam, but withdrew the job offer when Raines refused to answer one of the questions — the date of her most recent menstrual period.

Raines is now a plaintiff in the case along with Darrick Figg, who was hired for an office job at the San Ramon Valley Fire Protection District after completing a medical exam despite describing many of its questions as inappropriate and intrusive.

“I’m proud to stand up for the rights of California workers,” Raines said in a statement released by her lawyers. “No one should have to reveal every aspect of their personal medical history to get a job in California.”

U.S. Healthworks, a company which provides pre-employment medical exams, said in a court filing that the state’s ban on medical questioning applies only to employers. Some of its questionnaire might make job applicants “uncomfortable” but don’t invade their privacy, the company’s lawyers said, and “medical professionals routinely ask patients about personal, private health history in the context of a medical exam.”

But job-screeners aren’t doctors and applicants aren’t their patients, said Randy Erlewine, a San Francisco attorney representing the plaintiffs. He said employers and their agents can legally ask applicants job-related questions but not many of the inquiries in U.S. Healthworks’ standardized exam.

Disability-rights advocates said such mandatory questioning disproportionately affects job-seekers with disabilities, who already suffer high rates of unemployment and poverty. “These overbroad inquiries and exams will continue to effectively screen out applicants with disabilities,” the nonprofit Legal Aid at Work said in a court filing.

State Attorney General Rob Bonta agreed, saying applicants are often turned away after disclosing a disability that may be unrelated to the jobs they are seeking. Noting that the state’s 1980 Fair Employment and Housing Act forbids job discrimination by anyone “acting as an agent of an employer,” his office told the court, “unlawful pre-employment medical exams that seek information regarding a job applicant’s disability or medical condition would only create further barriers to employment.”

The suit had been dismissed by a federal judge in San Diego, who noted that the state law exempts small employers — those with fewer than five employees — and said it should not be interpreted to apply to non-employers such as U.S. Healthworks. The state Supreme Court has also ruled, in 1998 and 2008, that the ban on job discrimination did not cover individuals acting as agents of potential employers.

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