Contractors and Providers Can be Liable for FEHA Violations Also

It’s one of the oldest defenses known to mankind, and one we’ve all used when we were little kids: blame someone else when something goes wrong. But as of last year, when it comes to liability under the Fair Employment and Housing Act (FEHA), Defendants may not be able to point the finger at someone else, when they are sued for violating the law.

What Does the FEHA Say?

The FEHA prohibits employers from asking about, or screening for, any mental or physical disabilities or conditions for prospective employees. Employers cannot even ask questions of an employees’ past medical or mental health treatment or condition.

The law is intended to stop discrimination in hiring based on disability. Before the law, many employers would ask about employees’ feminine issues, or HIV, or STDs, or prescription medicines—all invasive, and potentially discriminatory, questions that have no bearing on fitness to do a particular job.

An employer can provide voluntary screenings for employees at work.

Exceptions to the Law

There are exceptions, where the bona fide qualifications of the job may require some measure of physical or mental aptitude or competence. However, these qualifications (exceptions) must be equally applicable to all applicants, and the same examination or screening must be applied to all applicants of the job, if in fact the job is one where such screening is allowed.

Case Says Providers are Liable

The case revolved around an employer who used a third party company (the provider) to do medical screening of potential employees. The employees felt the questions were invasive and discriminatory, and refused to answer, and then brought suit.

According to the lawsuit, there was nothing in the job description or requirements that required that any screening be done at all, thus, making the screening in violation an invasion of the applicants’ privacy, and thus, a violation of the FEHA.

The provider said that because it was just a contractor of the employer, and because the plaintiffs were not applying for a job with the provider, that the provider couldn’t be liable under the FEHA the same way that an employer could be.

The California supreme court held that even though the provider was merely an agent of and for the employer, it too could have liability under the FEHA. The Court noted that many large screening companies have the ability or authority to say no to employees that ask them to do FEHA-barred screenings, or else, the agencies can always require employees to indemnify them from liability.

The court didn’t provide a lot of direction as to how much control an employer must have or not have over a provider, in order for the provider to have liability under the FEHA.

Is your employer asking invasive and personal medical questions or requiring that you take a medical or mental health screening?  Contact the San Jose employment lawyers at the Costanzo Law Firm today.

Sources:

reuters.com/legal/government/calif-ban-employer-medical-questions-applies-screening-firms-ag-says-2022-10-07/

sjsu.edu/up/docs/Pre-Employment_Inquiry_Guidelines.pdf