9th Circuit

Richard Branton, Walbur Leonel and Vincent Fusco wanted nothing more than to work for the nation's No. 2 airline. After the three San Francisco men applied for positions as flight attendants at American Airlines in 1999 and completed the weekend-long interview process at its Dallas headquarters, the company issued them conditional offers of employment. Then it rescinded those offers. But it wasn't because of their inability to do the job. Company officials were unhappy with the results of their medical exams, which revealed Branton, Leonel and Fusco are HIV positive.

Because American claims the men lied on a medical history questionnaire about their HIV status, the company believes it was within its rights not to hire them. Branton, Leonel and Fusco, however, thought the question wasn't only

inappropriate, but illegal.

The three men sued American, claiming it illegally tested their blood and violated their rights under the Americans with Disabilities Act (ADA) and California's Fair Employment and Housing Act (FEHA) by requiring them to disclose their personal medical information too early in the application process. (The suits, Branton v. American Airlines, Fusco v. American Airlines and Leonel v. American Airlines, will be tried together.) In 2003, a California district court said the cases had no merit.

They appealed that decision, and the 9th Circuit ruled March 4 that American may have violated the applicants' privacy by failing to disclose the nature of the blood tests. The court sent the cases back to the district court, ruling that American must prove it wasn't in violation of the ADA at the time in the application process it asked the applicants to reveal personal medical information.

Either way the district court rules, the outcome will help clarify an area of the ADA that has had companies scratching their heads: when exactly, in the interview process, it's legal to request medical history.

ADA Glance

Under the ADA and FEHA, companies are only allowed to ask questions about medical history after they have completed a background check and are ready to make a "real" offer of employment.

"In other words, a real offer of employment means you've already passed the background check, and if you pass the medical, you have the job," says Todd Schneider, the plaintiffs' attorney and a partner at Schneider & Wallace in San Francisco. "There's nothing else to worry about."

The ADA does this to protect individuals with disabilities that have a stigma attached to them, such as HIV or AIDS. For example, if a company rescinds or denies employment to an applicant after it discovers a disability through a medical exam, the reason for the denial of the position is likely because of that disability. The ADA and FEHA aim to prevent this from happening.

"We apply for hundreds of jobs in our lifetime," Schneider explains. "If an employer was simply allowed to ask for this private information each time we applied for a job, people specifically with stigmatizing disabilities would be forced to reveal that information hundreds of times just for the prospect of getting a job."

But American believes, for efficiency purposes, it should be able to bend this rule.

The company argues it must complete applicants' entire interview processes while they are in Dallas, and therefore it begins several parts of the medical exam, such as having applicants fill out the medical history form, before completing the background checks.

"Applicants start filling out some paperwork in advance, but that's it," says Garry Mathiason, American's counsel on the cases and a partner at Littler Mendelson in San Francisco. "The company does not conclude the medical until the background check is completed."

The plaintiffs see it differently.

Although there are several blood disorders that disqualify a candidate for a flight attendant position, the plaintiffs knew HIV is not one of them. And because they thought the question about their HIV status violated their privacy, they lied on the questionnaires. Additionally, they had no reason to believe the company would ever find out.

"Vincent Fusco asked the nurse why he was having his blood drawn, and she told him they had to check for anemia," Schneider says.

The American Way

The company actually performed a complete blood count (CBC) on the applicants. Although the CBCs didn't include HIV tests, they did reveal an increased mean corpuscular volume (MCV) in all the applicants.

Increased MCV, or larger than normal red blood cells, is a side effect of the antiretroviral drugs used to treat HIV. When American asked the candidates to explain their increased MCV levels, they had their doctors send letters to the airline explaining the cause of the high MCV was the result of treatment for a condition unrelated to the job. When American insisted on knowing the exact condition, the men disclosed their HIV status.

American then sent letters to Branton, Leonel and Fusco withdrawing the job offers because they were "dishonest" on their applications.

"If someone lies about information on an [American Airlines] application, they are classified as engaging in a 'nondisclosure,'" Mathiason explains. "If they would have just left the question blank, they wouldn't have engaged in the nondisclosure. But when they said 'no,' they crossed the line and created a situation in which the company felt it had no choice but to rescind the offers to be consistent with regard to company policy."

The 9th Circuit, however, doesn't think American has made a case for itself. Not yet, at least.

"American has failed to show it could not have reasonably completed the background checks and so notified the appellants before initiating the medical examination process," Judge Raymond Fisher wrote. "It might, for example, have performed the background checks before the appellants arrived in Dallas, kept them in Dallas longer, flown them to Dallas twice, performed the medical examinations at satellite sites or relied on the appellants' private doctors, as it did for explanation of the CBC result."

Judge Fisher also wrote that although a blood test isn't a privacy violation per se, "by consenting to pre-employment blood tests, the appellants did not consent to any and all medical tests that American wished to run on their blood samples."

Whether or not American actually did anything wrong is for the California district court to decide. American's lawyers, however, don't seem too concerned.

"We think our process at American Airlines is the poster child for doing medical exams because, ultimately, it is the last thing that is completed," Mathiason says. "And we're confident we'll prove that and prevail at trial."

At press time, a court date hadn't been set.

Staff Writer

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