Whatever You Do, Don't Worry … You May Not Get Hired!

Here’s a new case that will make you shake your head in wonder.

Seems that a Wisconsin inpatient residential health facility was just sued by the EEOC for alleged disability discrimination.

Nothing new here … I’ve been writing forever that the EEOC seems to be targeting health care professionals and facilities for disability or pregnancy discrimination.   Does the EEOC sees such health care folks as fat, juicy targets, for example, accusing the “helping” or “caring” professions, which are there to treat the sick, disabled and pregnant, of disability discrimination surely attracts the inevitable sanctimonious media attention.

Alleging that health care folks discriminate on the basis of disability against the very people that they are there to minister to is sure to be called out by the public … and likely get a quick settlement for the EEOC.

But what this particular health facility allegedly did will make you really wonder how a health care company can act the way it (allegedly) did.

Or maybe not.

The EEOC noted that the health facility “provides treatment for various conditions including addiction, anxiety, depression, mood disorders and general mental health.” Indubitably a worthy program. But the health facility nonetheless allegedly rescinded a job offer to a woman whose pre-hiring drug screening showed that she tested positive … for a prescribed anti-anxiety drug!!!

Wait… a facility that treats those with anxiety wouldn’t hire an applicant with anxiety?

Can’t beat that for insensitivity, tone deafness and all around wrong headedness!

It also violates the Americans With Disabilities Act (“ADA”): the EEOC alleged that the offer was rescinded “because it regarded the applicant as disabled, a conclusion it reached because of her drug screen.”


Firing an employee if you perceive that he/she is disabled is just as violative under the ADA as if he/she actually in fact had a disability. The ADA, with its amendments, includes “persons who were not actually impaired or whose impairments did not constitute a disability, but were perceived to be impaired.”

An EEOC regional attorney, in discussing the ADA some time ago, noted that “Congress sought to protect people from being discriminated against based on unsubstantiated fears, myths, and unfounded stereotypes about actual or perceived disabilities.”

The EEOC stated about this new case that: “At her physical, she disclosed that she had a prescription for Alprazolam, the generic form of Xanax, a medication commonly prescribed for anxiety. She also disclosed other medical impairments that she had. She also provided a sample for her drug screen. … She [unsurprisingly] tested positive for Alprazolam. The doctor who performed the physical indicated on the physical examination form that she had reviewed the applicant’s drug screen and found her medically acceptable for work as an intake specialist.”

Despite all this, the health facility “failed to contact the applicant or give her the opportunity to provide additional prescription information to contest the drug screen. … [and] withdrew the job offer from the applicant by email without explaining the decision was related to her drug screen.”


The ADA prohibits employment discrimination based on myths and stereotypes about people with disabilities or perceived to have disabilities, and the EEOC is still targeting these cases.

I’ll repeat: this employer may be the poster child for violating the ADA … as well as insensitivity and tone deafness!

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]