Eeoc v. Bnsf Railway Company ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY No. 16-35457
COMMISSION,
Plaintiff-Appellee, D.C. No.
2:14-cv-01488-
v. MJP
BNSF RAILWAY COMPANY,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Senior District Judge, Presiding
Argued and Submitted February 8, 2018
Seattle, Washington
Filed August 29, 2018
Before: Raymond C. Fisher, Ronald M. Gould,
and Richard A. Paez, Circuit Judges.
Opinion by Judge Gould
2 EEOC V. BNSF
SUMMARY *
Americans with Disabilities Act
The panel affirmed the district court’s judgment
imposing liability on BNSF Railway Company under the
Americans with Disabilities Act (“ADA”); vacated the
nationwide injunction that prohibited BNSF from engaging
in certain hiring practices; and remanded with instructions
for the district court to apply the traditional four-factor test
to determine whether to issue a permanent injunction, and if
so, the scope of the injunction.
Russell Holt received a conditional job offer from BNSF
for the position of Senior Patrol Officer contingent on Holt’s
satisfactory completion of a post-offer medical review.
BNSF demanded that Holt submit an MRI of his back at his
own cost, which he could not afford. BNSF revoked Holt’s
job offer, and the Equal Employment Opportunity
Commission sued BNSF for violations of the ADA.
The panel held that the EEOC demonstrated all three
elements of a 42 U.S.C. § 12112(a) claim by showing
(1) that Holt had a “disability” within the meaning of the
ADA because BNSF perceived him to have a back
impairment; (2) that Holt was qualified for the job; and
(3) that BNSF impermissibly conditioned Holt’s job offer on
Holt procuring an MRI at his own expense because it
assumed that Holt had a back impairment. The panel noted
that BNSF offered no affirmative defense on appeal; and
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
EEOC V. BNSF 3
affirmed the district court’s holding that the EEOC made a
prima facie case for a violation of ADA, and was entitled to
summary judgment.
The district court held that it could grant an injunction to
the EEOC by statute, without looking to the four-factor test
for injunctive relief. The panel held that it need not, and did
not, decide whether the standard four-factor test for
injunctive relief was required in the Title VII/ADA context,
because even if the four-factor test applied, that test would
be satisfied. Namely, the panel held that Holt suffered an
irreparable injury, the remedies at law were inadequate, and
the balance of equities, and the public interest weighed in
favor of an injunction. The panel concluded that the district
court properly entered an injunction.
The panel held that the district court must make further
factual findings to support the scope of the injunction; and
remanded for the district court to establish the proper scope
of the injunction.
COUNSEL
Bryan P. Neal (argued) and Stephen F. Fink, Thompson &
Knight LLP, Dallas, Texas; Kenneth J. Diamond,
Winterbauer & Diamond PLLC, Seattle, Washington; for
Defendant-Appellant.
Susan Ruth Oxford (argued), Attorney; Margo Pave,
Assistant General Counsel; Jennifer S. Goldstein, Associate
General Counsel; James L. Lee, Deputy General Counsel;
U.S. Equal Employment Opportunity Commission,
Washington, D.C.; for Plaintiff-Appellee.
4 EEOC V. BNSF
John R. Annand and Rae T. Vann, NT Lakis LLP,
Washington, D.C.; Kathryn Comerford Todd and Warren
Postman, U.S. Chamber Litigation Center Inc., Washington,
D.C.; for Amici Curiae Equal Employment Advisory
Council and Chamber of Commerce of the United States of
America.
Jeffrey L. Needle, Law Offices of Jeffrey L. Needle, Seattle,
Washington; Jesse Wing, MacDonald Hoague & Bayless,
Seattle, Washington; for Amicus Curiae Washington
Employment Lawyers Association.
OPINION
GOULD, Circuit Judge:
Russell Holt received a conditional job offer from BNSF
Railway Company (“BNSF”) for the position of Senior
Patrol Officer, contingent on Holt’s satisfactory completion
of a post-offer medical review. During that medical review,
Holt disclosed that he had injured his back four years before,
suffering a two-level spinal disc extrusion. Holt’s primary
care doctor, his chiropractor, and the doctor BNSF’s
subcontractor hired to examine Holt all determined that Holt
had no current limitations due to his back and found no need
for follow-up testing. Yet as an effective condition to
consider him further for the job, BNSF demanded that Holt
submit an MRI of his back—at his own cost—or it would
treat Holt as having declined the offer. Holt was in
bankruptcy at that time and did not obtain an MRI. As a
result, BNSF revoked Holt’s job offer.
The district court concluded that BNSF’s actions
violated the Americans with Disabilities Act of 1990
EEOC V. BNSF 5
(“ADA”), 42 U.S.C. § 12101 et seq., as amended by the
ADA Amendments Act of 2008 (“ADAAA”) Pub. L. No.
110-325, 122 Stat. 3553, and issued a nationwide injunction
that prohibited BNSF from engaging in certain hiring
practices. We affirm the district court’s judgment imposing
ADA liability, but we vacate the injunction and remand with
instructions for the district court to apply the traditional four-
factor test to determine whether to issue a permanent
injunction, and, if so, the scope of the injunction.
I
In June 2011, Holt applied for a job with BNSF as a
Senior Patrol Officer. BNSF describes the job duties of a
Senior Patrol Officer as “essentially the same” as a city
police officer: Patrol Officers protect the safety of people
and property, prevent and respond to criminal activities, and
arrest suspects, among other duties. At the time he applied
to work for BNSF, Holt was working as a criminal
investigator in the Pulaski County Sheriff’s Office in Little
Rock, Arkansas, where he had worked for five years. After
interviewing Holt, BNSF extended him an offer of
employment—contingent upon him passing a background
check and satisfactorily completing a post-offer medical
exam.
BNSF contracts with Comprehensive Health Services
(“CHS”) to coordinate its medical evaluations nationwide.
CHS requires applicants to take a strength test, have a basic
physical examination, complete the CHS medical
questionnaire, submit to a clinical exam, answer any follow-
up questions, and potentially undergo a targeted medical
examination. For any cases in which the decision to clear or
reject an applicant is not routine, BNSF’s medical
department, not CHS, decides whether an applicant is
medically qualified.
6 EEOC V. BNSF
Holt proceeded through CHS’s evaluation process. In
his health questionnaire, Holt disclosed that he had injured
his back in 2007 and suffered back pain as a result. An MRI
had shown that he had a two-level disc extrusion, meaning
that the nucleus pulposus had escaped from two of his spinal
discs. In layman’s terms, this was described as the “jellylike
material” inside two of Holt’s spinal discs having been
pushed out of the discs and into the spinal column. A follow-
up MRI in 2009 showed that one of Holt’s spinal discs had
broken off, and a chunk of that spinal disc was then floating
in Holt’s spinal canal. 1 After his back injury, Holt had
regularly visited a chiropractor for “maintenance.”
Holt also suffered from knee pain in March 2011, as well
as some associated back pain, which led him to see his
primary care doctor, Dr. Richard Heck. Dr. Heck stated that
an MRI of Holt’s knee might be warranted, but one was
never ordered, and Holt’s knee and back pain appears to
have resolved with medication, chiropractic care, and
physical therapy.
On September 21, 2011, the day after Holt submitted his
questionnaire disclosing his prior back injury, a CHS nurse
called him with more questions about his back. Holt told her
that he had kept the same job after his back was injured and
that he had no current back issues. The nurse asked him to
submit his medical records relating to his back. Within a
week, Holt had submitted his medical records; a letter from
his chiropractor stating that Holt had responded well to care;
the 2007 MRI; and a note from Dr. Heck—who had just
1
BNSF’s doctor described this as progression in a “non-positive
direction,” while Holt’s primary care doctor opined that in some areas
Holt’s back looked better, while in other areas his back looked worse.
EEOC V. BNSF 7
reexamined Holt that week—stating that Holt had no current
back problems and had functioned normally since 2009.
CHS’s subcontractor, Concentra, then assigned Dr.
Marcia Hixson to conduct a medical exam of Holt. Dr.
Hixson was informed generally of Holt’s prior back injury, 2
and she said that she looked at his back a “little more
closely” than usual as part of her “very thorough” exam. Dr.
Hixson’s exam revealed no issues—with Holt’s back or
otherwise—that would prevent him from performing the
duties of the Patrol Officer job, and she saw no need for a
follow-up exam; Dr. Hixson relayed these conclusions on
the written examination report.
CHS then sent its medical file on Holt to BNSF for
additional review. BNSF’s Medical Officer, Dr. Michael
Jarrard, reviewed Holt’s file. Dr. Jarrard decided that he
wanted additional information before he made an informed
decision about whether Holt could perform the Senior Patrol
Officer job. Specifically, on November 11, 2011, Dr. Jarrard
requested (1) a current MRI and radiologist’s report on
Holt’s back, (2) Holt’s pharmacy records for the past two
years for prescriptions related to treatment of Holt’s back
pain, and (3) any other medical records for Holt from the
prior two years, including chiropractic notes. Dr. Jarrard
stated that he wanted this information because—although
Holt reported no current symptoms and all the reviewing
doctors had agreed that he could perform the job—Dr.
Jarrard was concerned that there was an underlying
pathology that might disqualify Holt from the job. Dr.
Jarrard told CHS to tell Holt that the additional information
2
Dr. Hixson was not provided with any of Holt’s prior medical
records.
8 EEOC V. BNSF
was necessary “due to [the] uncertain prognosis of [Holt’s]
back condition.”
What happened next is the subject of some dispute
between the parties. But based on the record, this picture
emerges: In November, Holt contacted Dr. Heck’s office and
stated that he needed an MRI for his job application with
BNSF. It is not clear whether Holt spoke directly with Dr.
Heck about this request, although it appears likely that he
did. In any event, it is uncontroverted that Holt at least spoke
with Dr. Heck’s office about getting an MRI and was told
that because he was not currently in pain, the MRI was not
medically necessary and so would not be covered by his
insurance. An employee from Dr. Heck’s office followed up
to tell Holt that the office had checked with Holt’s insurance
company, and the insurance company had confirmed that it
would not cover the MRI.
Holt then investigated paying out-of-pocket for the MRI,
and was told it would cost more than $2,500 to obtain an
MRI without a doctor’s referral. Holt was in bankruptcy at
the time of his job application. Holt states that he could not
afford to pay for an MRI, an allegation BNSF disputes. We
do not rely on Holt’s representation about his inability to pay
in arriving at our holding here. It is not disputed that Holt
told BNSF about the high cost of the MRI and that BNSF
responded that he was expected to bear the cost of the MRI
himself.
After some back-and-forth communications with BNSF
in which Holt asked to have the MRI requirement waived,
he was told that without the MRI he would not be hired. Holt
EEOC V. BNSF 9
did not obtain an MRI, 3 and so on December 15, 2011,
BNSF designated Holt as having declined the conditional job
offer. 4
Holt next filed a charge with the Equal Employment
Opportunity Commission (“EEOC”). The EEOC then sued
BNSF for alleged violations of the ADA. BNSF moved to
dismiss the complaint. The district court denied that motion,
holding that the EEOC had properly pleaded a claim under
the ADA, 42 U.S.C. § 12112(b)(6). The parties proceeded
through discovery, and both sides moved for summary
judgment—BNSF moving for summary judgment as to the
entire case and the EEOC requesting only partial summary
judgment on the issue of ADA liability.
The district court granted the EEOC’s motion for partial
summary judgment, and denied BNSF’s motion. Although
the district court had held in denying BNSF’s motion to
dismiss that the EEOC could bring its claim under
§ 12112(b)(6), the district court reversed course in its
summary judgment order. It instead concluded that
§ 12112(b)(6) was a disparate impact, not a disparate
treatment provision, and that the EEOC could not make out
3
Holt also did not provide the other medical records that BNSF
requested, but without the MRI, it would not have mattered whether Holt
gave them to BNSF—he still would have been treated as having declined
the job offer.
4
It is undisputed that Holt later had serious back issues requiring
him to undergo surgery in December 2013. Holt testified that those
issues caused him to take a six-week medical leave, but that he worked
as a law enforcement officer before and after the surgery. Regardless,
that Holt later had back problems is not relevant to whether BNSF’s
actions were justified on the information it had before it in 2011. See
Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1248 (9th Cir. 1999).
10 EEOC V. BNSF
a § 12112(b)(6) claim absent a showing that BNSF had
applied an across-the-board policy.
The district court held that the EEOC could, however,
make out a “generic § 12112(a) claim” against BNSF. It
determined that the EEOC had established all three elements
of a prima facie case for disability discrimination under
§ 12112(a): The EEOC had shown that (1) BNSF had
“regarded” Holt as having a disability due to his 2007 back
injury; (2) Holt was qualified for the job; and (3) BNSF
discriminated against Holt by requiring an MRI because
BNSF regarded Holt as having a disability. Holding that
BNSF did not offer evidence sufficient to support any
affirmative defense, the district court granted partial
summary judgment to the EEOC.
The parties then reached an agreement on the amount to
be awarded for damages, although BNSF did not waive its
appellate rights. The district court adopted the damages
agreement.
Subsequently, the parties briefed the issue of injunctive
relief, and the district court entered a nationwide injunction.
The district court concluded that because it found BNSF to
have purposefully engaged in an unlawful employment
practice and BNSF had expressed no intention of changing
its behavior, by statute injunctive relief against BNSF was
authorized under 42 U.S.C. § 2000e-5(g)(1). The district
court’s injunction mandated that “BNSF must bear the cost
of procuring any additional information it deems necessary
to complete a medical qualification evaluation.” It also
required that “[i]f BNSF chooses not to procure additional
information, it must complete the medical examination
process, i.e., it must use the medical information it does have
to make a determination about whether the applicant is
EEOC V. BNSF 11
medically qualified for the job for which the applicant
received the conditional offer.” BNSF appeals.
II
We review de novo the district court’s ruling on cross-
motions for summary judgment. Guatay Christian
Fellowship v. Cty. of San Diego, 670 F.3d 957, 970 (9th Cir.
2011). We can consider together the denial of BNSF’s
motion for summary judgment and the grant of the EEOC’s
motion for summary judgment. See Padfield v. AIG Life Ins.
Co., 290 F.3d 1121, 1124 (9th Cir. 2002). “Summary
judgment is appropriate if there is no genuine dispute of
material fact viewing the evidence in the light most
favorable to the nonmoving party.” Folkens v. Wyland
Worldwide, LLC, 882 F.3d 768, 773 (9th Cir. 2018) (internal
quotation marks and citation omitted).
We review for abuse of discretion the district court’s
decision to grant a permanent injunction, but review de novo
the district court’s legal conclusions underlying the decision.
Ting v. AT&T, 319 F.3d 1126, 1134–35 (9th Cir. 2003).
III
Under the ADA, employer medical inquiries are divided
into three categories, each with different rules: (1) inquiries
conducted before employers make offers of employment;
(2) inquires conducted “after an offer of employment has
been made but prior to the commencement of employment
duties (‘employment entrance examinations’)”; and
(3) inquiries conducted at any later point. Norman-
Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1273
(9th Cir. 1998) (alterations and quotation marks omitted);
see also § 12112 (d)(2)–(4). This case concerns the second
12 EEOC V. BNSF
category of rules, which govern employment entrance
examinations.
“Unlike examinations conducted at any other time, an
employment entrance examination need not be concerned
solely with the individual’s ‘ability to perform job-related
functions,’ § 12112(d)(2); nor must it be ‘job-related or
consistent with business necessity,’ § 12112(d)(4).”
Norman-Bloodsaw, 135 F.3d at 1273. However, these
examinations must still be used in accord with the ADA and
cannot violate the ADA’s generic disability prohibitions set
forth in § 12112(a). 42 U.S.C. § 12112(d)(1); see also
29 C.F.R. § 1630.14(b)(3).
Under § 12112(a) of the ADA, an employer is generally
prohibited from “discriminat[ing] against a qualified
individual on the basis of disability in regard to job
application procedures [or] hiring . . . and other terms,
conditions, and privileges of employment.” The EEOC
contends that BNSF violated this prohibition. To make out
a prima facie case for a violation of § 12112(a), the EEOC
must show: (1) that Holt had a disability within the meaning
of the ADA, (2) that Holt was qualified for the position, and
(3) that BNSF discriminated against Holt because of his
disability. See Smith v. Clark Cty. Sch. Dist., 727 F.3d 950,
955 (9th Cir. 2013). The parties contend, and we agree, that
this case turns on the first and third prongs: whether Holt had
a disability and whether BNSF discriminated against Holt
because of his disability.
A.
We first consider whether Holt had a disability within the
meaning of the ADA. See Clark Cty. Sch. Dist., 727 F.3d at
955. The EEOC contends that BNSF “regarded” Holt as
having a disability. Under the ADA, a person with a
EEOC V. BNSF 13
“disability” is defined to include an individual who is
“regarded as having” an impairment. 42 U.S.C.
§ 12102(1)(C). 5 The ADA currently provides that:
An individual meets the requirement of
“being regarded as having such an
impairment” if the individual establishes that
he or she has been subjected to an action
prohibited under [the ADA] because of an
actual or perceived physical or mental
impairment whether or not the impairment
limits or is perceived to limit a major life
activity.
Id. § 12102(3)(A). Notably, the ADAAA discarded the
requirement that an impairment had to substantially limit a
major life activity for the discrimination to be actionable
under the “regarded as” prong. Compare 42 U.S.C.
§ 12102(2) (2008), with 42 U.S.C. § 12102(3)(A) (2009);
see also Mercado v. Puerto Rico, 814 F.3d 581, 588 (1st Cir.
2016). But the ADAAA does require that an impairment not
be “transitory” or “minor.” Id. § 12102(3)(B). In regarded-
as cases, thus, a plaintiff must show that the employer knew
that the employee had an actual impairment or perceived the
employee to have an impairment, and that the impairment
was not transitory or minor. See Adair v. City of Muskogee,
823 F.3d 1297, 1306 (10th Cir. 2016). 6
5
On appeal, the EEOC does not advance its prior argument that Holt
had a record of disability based on his back injury.
6
While the EEOC must also show that Holt was “subjected to an
action prohibited under [the ADA],” 42 U.S.C. § 12102(3)(A), we
consider that issue in analyzing the third prong of a § 12112(a) claim.
14 EEOC V. BNSF
The parties agree that for BNSF to have regarded Holt as
having a disability, BNSF must have regarded him as having
a current impairment. This reading comports both with the
statutory text, which prohibits discrimination on the basis of
an “actual or perceived impairment” in the present tense,
42 U.S.C. § 12102(3)(A), and with out-of-circuit case law,
see Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1113 (8th Cir.
2016) (“The ADA prohibits an employer from
discriminating against an individual on the basis of a
presently existing ‘physical impairment’ as that term is
defined under the Act.” (emphasis added)). The EEOC bears
the burden of establishing that BNSF regarded Holt as
having an impairment when BNSF requested the MRI.
By regulation, the EEOC has defined an impairment as
“[a]ny physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more body
systems.” 29 C.F.R. § 1630.2(h)(1). The definition of
“impairment” remained unchanged following the enactment
of the ADAAA. 29 C.F.R. § 1630(h), App. The ADAAA,
however, added language requiring that “[t]he definition of
disability in this chapter shall be construed in favor of broad
coverage of individuals under this chapter, to the maximum
extent permitted by the terms of this chapter.” 42 U.S.C.
§ 12102(4)(A). As a result, we construe “perceived
impairment,” which forms part of the definition of
“disability,” broadly.
BNSF argues that it did not perceive Holt to have an
impairment; its Medical Officer was simply unsure of the
state of Holt’s back and so sought more information. BNSF
cites Lanman v. Johnson County, 393 F.3d 1151 (10th Cir.
2004), for the proposition that merely asking for an exam
does not suggest that an employer perceived an employee to
have an impairment. The EEOC argues that BNSF actually
EEOC V. BNSF 15
knew Holt had a current impairment because Holt’s disc
extrusion was a permanent condition. The EEOC points to
Dr. Jarrard’s deposition, during which he was asked whether
“a disc extrusion, the material within the vertebra, ever
regenerate . . . or be restored?” Dr. Jarrard answered, “No.”
The EEOC argues that because the nucleus pulposus would
never be restored, Holt had an ongoing impairment, of which
BNSF was aware.
First, BNSF’s citation to Lanman is not persuasive.
There, Lanman was a county sheriff’s deputy. Id. at 1153.
After receiving several reports that Lanman had behaved in
a troubling manner, the county placed her on leave pending
the outcome of a psychiatric evaluation. Id. at 1153–54.
Lanman argued that she had been discriminated against in
violation of the ADA. Id. at 1154. The Tenth Circuit
disagreed. Id. at 1157. The court questioned whether
Lanman had shown that the county perceived her as having
an impairment, and cited the ADA for the proposition that
an employer may “order a medical exam when it is ‘shown
to be job-related and consistent with business necessity.’”
Id. (quoting 42 U.S.C. § 12112(d)(4)(A)). Critically,
however, the court held that even if Lanman had been able
to demonstrate the county regarded her as impaired, she was
not able to show the county believed the impairment
“substantially limited her in at least one major life activity.”
Id. Thus, Lanman was not “disabled” within the meaning of
the ADA. Id. at 1158.
Lanman is not helpful here, because the principal basis
of its holding has been superseded by statute. The ADA no
longer requires a showing of a substantially limiting
impairment, following the 2008 enactment of the ADAAA.
Compare 42 U.S.C. § 12102(2) (2008), with 42 U.S.C.
§ 12102(3)(A) (2009). Thus, the EEOC need show only that
16 EEOC V. BNSF
BNSF considered Holt to have an impairment—not a
substantially limiting impairment. See § 12102(3)(A);
Mercado, 814 F.3d at 588. The other cases BNSF cites are
similarly unhelpful.
Second, we decline to parse the nature of Holt’s medical
condition. Whether or not Holt’s disc extrusion was a
permanent condition is irrelevant here. In requesting an MRI
because of Holt’s prior back issues and conditioning his job
offer on the completion of the MRI at his own cost, BNSF
assumed that Holt had a “back condition” that disqualified
him from the job unless Holt could disprove that proposition.
And in rejecting Holt’s application because it lacked a recent
MRI, BNSF treated him as it would an applicant whose
medical exam had turned up a back impairment or disability.
BNSF chose to perceive Holt as having an impairment at the
time it asked for the MRI and at the time it revoked his job
offer.
BNSF cannot hide behind its argument that there was
some uncertainty as to the actual state of Holt’s back when
it assumed that Holt had a back condition that disqualified
him from the Senior Patrol Officer job. Construing the
definition of “perceived impairment” to encompass
situations where an employer assumes an employee has an
impairment or disability is consistent with the ADAAA’s
mandate that “the definition of disability . . . be construed in
favor of broad coverage of individuals under [the ADA], to
the maximum extent permitted by the terms of [the ADA].”
See 42 U.S.C. § 12102(4)(A). We conclude that BNSF
perceived Holt to have an impairment for the purposes of the
ADA.
EEOC V. BNSF 17
B
We next address whether BNSF discriminated against
Holt because of his perceived impairment. See Clark Cty.
Sch. Dist., 727 F.3d at 955. Specifically, we consider
whether it was permissible for BNSF to condition Holt’s job
offer on Holt obtaining an MRI at his own expense. This is
not how the EEOC frames the discriminatory act—it instead
refers to the “rescission of [Holt’s] job offer” and focuses on
the argument that Holt was unable to complete the testing
process. But the key question, as we see it, is whether BNSF
was entitled to condition Holt’s continuation through the
hiring process on Holt providing an MRI at his own cost. If
BNSF was entitled to do this, then disqualifying Holt
because he failed to cooperate in the completion of the
medical screening process, whatever the reason he could not
complete the process, was likely permissible. Cf. Roberts v.
City of Chicago, 817 F.3d 561, 565–66 (7th Cir. 2016)
(finding no ADA violation where plaintiffs were not hired
because the first eleven applicants to complete medical
testing were hired, and plaintiffs were delayed in completing
the medical testing because they were required to go through
additional screening because of their disabilities); Leonel v.
Am. Airlines, Inc., 400 F.3d 702, 709 n.13 (9th Cir. 2005)
(“We do not suggest that, when a medical examination is
conducted at the proper time and in the proper manner, an
applicant has an option to lie, or that an employer is
foreclosed from refusing to hire an applicant who does.”);
Garrison v. Baker Hughes Oilfield Operations, Inc.,
287 F.3d 955, 961 n.5 (10th Cir. 2002) (suggesting that it is
permissible to fire an applicant for lying on a medical
18 EEOC V. BNSF
questionnaire); EEOC v. Prevo’s Family Mkt., Inc., 135 F.3d
1089, 1097 (6th Cir. 1998).
The ADA prohibits discrimination “in regard to job
application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). Requiring that an
applicant pay for an MRI—or else lose his or her job offer—
because the applicant has a perceived back impairment is a
condition of employment imposed discriminatorily on a
person with a perceived impairment. Moreover, given the
indisputably high cost of MRIs, requiring an MRI as a
condition of employment will for many individuals mean a
disqualification from participating in the process.
BNSF, however, argues that § 12112(d)(3) authorizes
exactly this type of action. BNSF highlights the following
text of § 12112(d)(3):
A covered entity may require a medical
examination after an offer of employment has
been made to a job applicant and prior to the
commencement of the employment duties of
such applicant, and may condition an offer of
employment on the results of such
examination.
§ 12112(d)(3). BNSF fails to mention, however, that the
statute qualifies this by stating that these medical exams can
only be given if “all entering employees are subjected to
such an examination regardless of disability.”
§ 12112(d)(3)(A).
BNSF further points out that the EEOC’s 1995
Enforcement Guidance states that follow-up exams are
EEOC V. BNSF 19
permissible so long as they are “medically related to
previously obtained medical information.” This would
appear to be a necessary implication of allowing employers
to conduct medical examinations—it would be an odd and
incomplete medical exam that could not include follow-up
inquiries or testing based on red flags raised in the initial
exam. But this does not support BNSF’s position that the
prospective employee may be forced to shoulder the cost of
such follow-up exams.
It is true that follow-up exams will frequently be required
of people with disabilities or impairments because they have
disabilities or impairments. But this additional burden is
implicitly authorized by § 12112(d)(3)’s authorization of
medical exams. See Roberts, 817 F.3d at 566. Indeed, the
EEOC concedes that BNSF could have required Holt to get
an MRI if BNSF had offered to pay for the MRI. The dispute
is over cost allocation. Although it authorizes testing that
may disproportionately affect persons with disabilities,
§ 12112(d)(3) does not, by extension, authorize an employer
to further burden a prospective employee with the cost of the
testing, however necessary the testing may be. The statute
is silent as to who must bear the costs of testing.
BNSF argues that because the ADA allows an employer
to “require a medical examination” and not to merely “give”
or “request” one, the ADA empowers employers to force
applicants to pay for the costs any of testing. BNSF reads
too much into the word “require.” Here, “require” is
properly understood to mean that an employer can compel a
medical exam, and that a conditionally hired person’s
participation in the medical exam is not optional. See
Requirement, Black’s Law Dictionary (10th ed. 2014)
(“[s]omething that must be done”). But the word “require”
indicates nothing about who must bear the costs of any
20 EEOC V. BNSF
medical testing. Accordingly, we hold that the standard anti-
discrimination provision of the ADA and the ADA’s policy
purposes should control on the issue of who must bear the
costs of testing.
An employer would not run afoul of § 12112(a) if it
required that everyone to whom it conditionally extended an
employment offer obtain an MRI at their own expense. 7
That employer would be imposing a cost on its prospective
employees across-the-board, with no regard for their actual
or perceived disability or impairment status. Where,
however, an employer requests an MRI at the applicant’s
cost only from persons with a perceived or actual
impairment or disability, the employer is imposing an
additional financial burden on a person with a disability
because of that person’s disability. 8 In the case of an
expensive test like an MRI, 9 making an applicant bear the
cost will effectively preclude many applicants, which is at
odds with the ADA’s aim to increase opportunities for
persons with disabilities.
7
This is not to say that such an action would necessarily be legal;
we merely note that § 12112(a) would not prohibit it.
8
For these reasons, O’Neal v. City of New Albany, 293 F.3d 998 (7th
Cir. 2002), which BNSF cites extensively, is not relevant here, because
there the plaintiff conceded that he did not have a disability and did not
argue that the burden of paying for testing was imposed on him on
account of his disability. See id. at 1010.
9
This is not to imply that an employer may require a prospective
employee with a perceived or actual impairment to pay for an
inexpensive medical test. On the contrary, our holding here applies
regardless of the cost of the medical test at issue, as well as the
employee’s ability to pay.
EEOC V. BNSF 21
In short, requiring an applicant to pay for follow-up
testing is distinct from merely requiring an additional exam
for a person with a disability if an additional exam is
necessary to complete the medical examination
contemplated in § 12112(d)(3). But it is not at all necessary
that a person with an impairment pay for an exam for a
thorough exam to be completed. To construe the statute
otherwise would be to constrain and limit the general
protections of the ADA beyond the necessary implications
of the medical testing provision.
Further, elsewhere the ADA puts the financial burden on
employers. The ADA requires employers to pay for
reasonable accommodations unless it is an undue hardship—
it does not require employees to procure reasonable
accommodations at their own expense. 42 U.S.C.
§ 12112(a), (b)(5)(A); see also 29 C.F.R. § 1630.2(o)(4). 10
Allowing employers to place the burden on people with
perceived impairments to pay for follow-up tests would
subvert the goal of the ADA to ensure that those with
10
While the Fourth Circuit has found no ADA violation where an
employer required an employee to obtain, at his own cost, a functional
capacity evaluation before returning to work, the court did not explain
why it was permissible to require the employee to pay for testing. See
Porter v. U.S. Alumoweld Co., 125 F.3d 243, 245 (4th Cir. 1997). The
court instead focused on the fact that the requested test was “job-related
and consistent with business necessity” under § 12112(d)(4). Id. at 246.
The court also noted that in the absence of any testing, the plaintiff there
could not make out a prima facie case of discrimination, as he could not
demonstrate that he had a disability or that he was capable of doing his
job with or without a reasonable accommodation. Id. at 246–47. That
case also predated the ADAAA. Given the different factual context and
that the court did not discuss why it was appropriate to require an
employee to pay for testing, we are not persuaded that we should follow
the Porter court here.
22 EEOC V. BNSF
disabilities have “equality of opportunity,” § 12101(a)(7),
and would force people with disabilities to face costly
barriers to employment.
Additionally, requiring employers to bear the costs of
this testing would discourage unnecessary and burdensome
testing of persons with disabilities or impairments, and
prevent employers from abusing their ability to require tests.
As amicus curiae Washington Employment Lawyers
Association points out, if employers are not required to pay
for the additional medical tests that they require of people
with disabilities, then employers might use the cost of
medical testing to screen out disabled applicants. 11 Putting
the burden to pay on employers helps to ensure that
employers do not abuse their power to require testing at the
post-offer, pre-employment stage.
BNSF also argues that the EEOC did not show that
BNSF acted with a discriminatory motive, or that BNSF’s
justifications for its behavior were pretextual. But as we
have held en banc, where it is clear that an action was taken
because of an impairment or perception of an impairment,
no further inquiry or burden-shifting protocol is necessary to
establish causation. See Bates v. United Parcel Serv., Inc.,
511 F.3d 974, 988 (9th Cir. 2007). Here, there is no question
that BNSF conditioned Holt’s job offer on Holt obtaining an
up-to-date MRI of his back because of BNSF’s assumption
11
BNSF argues that this concern should not have any bearing here
because requesting medical information for the purpose of deterring or
screening out disabled applicants would be impermissible under the
ADA. BNSF’s argument ignores both the difficulty an applicant would
face in proving discriminatory intent and that while an employer may not
intentionally seek to screen out disabled applicants, a cavalier attitude
toward applicant-paid testing may effectively screen out persons with
disabilities in a way that violates the ADA.
EEOC V. BNSF 23
that Holt had a back impairment. No further causation
inquiry is necessary.
C
The final element that we must consider on the
§ 12112(a) claim is whether Holt was a “qualified individual
with a disability.” This term means an “individual with a
disability who, with or without reasonable accommodation,
can perform the essential functions of the employment
position that such individual holds or desires.” § 12111(8).
BNSF makes no attempt to argue that Holt was not an
otherwise qualified individual. Nor could it credibly do so:
Holt received a conditional offer of employment, at the time
of his application he was working as a law enforcement
officer, and he was cleared by all three doctors who
physically examined him.
That BNSF does not contest this element is telling.
Effectively, BNSF has conceded that the medical
information it had on Holt at the time it rejected him
demonstrated that Holt could perform the Senior Patrol
Officer job—yet BNSF still demanded that Holt procure an
MRI at his own expense. This is not a case where the
medical information previously adduced had been
disqualifying and BNSF had provided Holt one last chance
to show his ability to perform the job. In such a case,
§ 12112(a) would not prevent BNSF from choosing not to
hire Holt because Holt would be unable to show he was
“otherwise qualified for the job.” BNSF had ample evidence
that Holt could do the job. Yet in the face of all that
evidence, BNSF nonetheless decided to impose the burden
of procuring an expensive medical test on Holt because of
its perception that Holt had an underlying back problem.
24 EEOC V. BNSF
We conclude that the EEOC has demonstrated all three
elements of a § 12112(a) claim by showing (1) that Holt had
a “disability” within the meaning of the ADA because BNSF
perceived him to have a back impairment; (2) that Holt was
qualified for the job; and (3) that BNSF impermissibly
conditioned Holt’s job offer on Holt procuring an MRI at his
own expense because it assumed that Holt had a back
impairment. BNSF offers no affirmative defense on appeal.
We affirm the district court’s holding on ADA liability. 12
IV
BNSF argues that the district court erred in issuing its
injunction, both because it applied the wrong legal standard
and because it could not issue a nationwide injunction.
BNSF argues that controlling Supreme Court authority
required the district court to use the standard four-factor
test—which considers (1) whether a plaintiff has suffered an
irreparable injury, (2) whether remedies available at law are
inadequate to compensate for that inquiry, (3) the balance of
hardships, and (4) the public interest—before issuing a
permanent injunction. See eBay Inc. v. MercExchange, LLC,
547 U.S. 388, 391 (2006). In recent years, the four-factor
test has commonly been applied by the Supreme Court to
assess the propriety of injunctive relief. See id.; Monsanto
Co. v. Geertson Seed Farms, 561 U.S. 139 (2010).
The district court held that it could grant an injunction to
the EEOC by statute, without looking to the four-factor test.
It reached this conclusion because the ADA authorizes any
12
Because we hold that the district court correctly concluded that
the EEOC was entitled to summary judgment on its § 12112(a) claim,
we do not reach the EEOC’s alternative argument that BNSF violated
§ 12112(b)(6).
EEOC V. BNSF 25
person who proves an ADA violation to seek the remedies
provided for in Title VII of the Civil Rights Act of 1964. See
42 U.S.C. § 12117(a). The district court reasoned that under
Title VII, when a court finds that a defendant has
intentionally engaged in an unlawful employment practice,
“the court may enjoin the respondent from engaging in such
unlawful employment practice, and order such affirmative
action as may be appropriate.” Id. § 2000e-5(g)(1). Indeed,
both our court and the Supreme Court have granted
permanent injunctions in the Title VII context without
analyzing the four-factor test. See, e.g., Ariz. Governing
Comm. for Tax Deferred Annuity & Deferred Comp. Plans
v. Norris, 463 U.S. 1073, 1092 (1983) (Marshall, J.,
concurring); Int’l Bhd. of Teamsters v. United States,
431 U.S. 324, 361 (1977); EEOC v. Goodyear Aerospace
Corp., 813 F.2d 1539, 1544 (9th Cir. 1987). Because the
district court had already held that BNSF had violated the
ADA and because it found that BNSF had no intention of
ceasing its unlawful practice, the district court determined
that an injunction was authorized by statute.
We need not and do not decide today whether eBay and
Monsanto require the application of the four-factor test in the
Title VII/ADA context because we determine that even if the
four-factor test is applied, that test would be satisfied here.
See Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d
1036, 1044 (9th Cir. 2012). First, if BNSF continued its
practice, Holt and others like him would suffer the dignitary
harm of being falsely told that their disability or perceived
impairment rendered them unfit for certain work. See
Nelson v. Nat’l Aeronautics & Space Admin., 530 F.3d 865,
882 (9th Cir. 2008), rev’d on other grounds, 562 U.S. 134
(2011) (“[T]he loss of one’s job does not carry merely
monetary consequences; it carries emotional damages and
stress, which cannot be compensated by mere back payment
26 EEOC V. BNSF
of wages.”). The harms a person suffers when denied a job
on the basis of a disability are “emotional and
psychological—and immediate.” Chalk v. U.S. Dist. Court
Cent. Dist. of Cal., 840 F.2d 701, 710 (9th Cir. 1988). And
we are satisfied that these harms constitute irreparable
injury. See id. Relatedly, while Holt can receive back pay
and reinstatement at law, no legal remedy can fully right the
wrong of such a dignitary affront. See id. We thus conclude
that the second factor—insufficient remedies at law—is
satisfied here too.
Further, preventing BNSF from continuing to
discriminate in its hiring practices does not result in any
hardship to BNSF; BNSF is merely being forced to stop
doing what it is not entitled to do. By contrast, absent an
injunction, those with disabilities or perceived disabilities
who receive conditional offers from BNSF will face serious
hardship: they will either be deprived of a job on the basis of
their disability, or else forced to pay large sums out of their
own pocket for additional testing. The third factor is
therefore satisfied. Finally, the public interest—the fourth
factor—is served by preventing employment discrimination.
See Gen. Tel. Co. of the Nw. v. Equal Emp’t Opportunity
Comm’n, 446 U.S. 318, 326 (1980) (“When the EEOC acts,
albeit at the behest of and for the benefit of specific
individuals, it acts also to vindicate the public interest in
preventing employment discrimination.”). We agree with
the district court and hold that its injunction was
appropriately entered here.
However, we agree with BNSF that the district court
must make adequate factual findings to support the scope of
the injunction. See City & Cty. of S.F. v. Trump, No. 17-
17478, 2018 WL 3637911, at *12–13 (9th Cir. Aug. 1,
2018). We observe preliminarily that there are some reasons
EEOC V. BNSF 27
to support an injunction like that previously entered here.
Although BNSF operates in dozens of states, its medical
screening decisions are made out of a central medical office
in Texas. Holt’s own case demonstrates the difficulty of
imposing a geographic constraint of the sort BNSF
advocates: Holt lived in Arkansas at the time of his
application, applied for a position in Washington, and was
rejected at the direction of employees in BNSF’s Texas
office. 13 But the district court did not make factual findings
or articulate its reasoning, and so we cannot yet properly
review the scope of the injunction. Whether an injunction
should be entered in exactly the form and scope of the
injunction previously entered by the district court depends
on the further review and findings to be made by the district
court on remand.
We therefore vacate the injunction and remand for the
district court to make further factual findings in order to
establish the proper scope of the injunction.
Each party shall bear its own costs on appeal.
AFFIRMED in part; VACATED in part and
REMANDED.
13
BNSF argues that we should cabin the scope of any injunction to
the Ninth Circuit because other circuits have authorized the conduct at
issue. We need not decide this issue, which will be considered in the
first instance by the district court. However, we observe that no other
circuit court has yet ruled on the permissibility of requiring persons who
have disabilities or perceived disabilities to pay for their own follow-up
testing during the hiring process.