Illegal inquiry claim must show proof of harm

Massachusetts law and the ADA prohibit employers from making a preemployment inquiry regarding an applicant's medical and disability status. According to the 1st Circuit, an applicant cannot sue for violations of the state law unless he can show an injury caused by the illegal questioning.

Case name: Martino v. Forward Air, Inc., No. 09-1663 (1st Cir. 06/14/10).

Ruling: The 1st U.S. Circuit Court of Appeals affirmed dismissal of an employee's claim that his employer made an illegal preemployment inquiry regarding his workers' compensation claim under state law analogous to the Americans with Disabilities Act.

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What it means: Massachusetts law and the ADA prohibit employers from making a preemployment inquiry regarding an applicant's medical and disability status. According to this court, an applicant cannot sue for violations of the state law unless he can show an injury caused by the illegal questioning.

Summary: An employee for a freight forwarding company was seriously injured on the job, causing him to be out of work for two years and receive a workers' compensation settlement. When he learned that the company was creating a position for which he might be qualified, he submitted an application. The company conducted a background check, including a workers' compensation history check, on the employee. It later notified him that, for business reasons, the position would not be created. The employee sued for a variety of discrimination claims under state law and the ADA. A jury found that the employer had a legitimate reason for not creating the position. The 1st Circuit held that this finding blocked the employee's illegal inquiry claim.

The jury concluded that the company did not discriminate when it decided not to create the position. Because of this conclusion, the court reasoned that the employee could not "prove the most obvious type of harm -- a wrongful employment action." Though the employee alleged that he suffered emotional harm because of the preemployment inquiry into his workers' compensation history, the court found that his fear was not related to any action taken by the company and so was too tenuous to support recovery.

Read more at the WorkersComp Forum homepage.

September 7, 2010

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