Leonel v. American Airlines

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALBER LEONEL,  No. 03-15890
Plaintiff-Appellant,
v.  D.C. No.
CV-00-03842-PJH
AMERICAN AIRLINES, INC.,
Defendant-Appellee.

RICHARD BRANTON,  No. 03-15893
Plaintiff-Appellant,
v.  D.C. No.
CV-00-02597-PJH
AMERICAN AIRLINES, INC.,
Defendant-Appellee.

VINCENT FUSCO,  No. 03-15897
Plaintiff-Appellant, D.C. No.
v. CV-00-01439-PJH
AMERICAN AIRLINES, INC., ORDER
Defendant-Appellee. AMENDING
OPINION AND
 DENYING
PETITION FOR
PANEL
REHEARING AND
PETITION FOR
REHEARING
EN BANC AND
AMENDED
 OPINION
4685
4686 LEONEL v. AMERICAN AIRLINES, INC.
Appeals from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted
October 4, 2004—San Francisco, California
Filed March 4, 2005
Amended April 28, 2005
Before: Richard D. Cudahy,* Susan P. Graber and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
*The Honorable Richard D. Cudahy, Senior Judge, United States Court
of Appeals for the Seventh Circuit, sitting by designation.
LEONEL v. AMERICAN AIRLINES, INC. 4689
COUNSEL
Todd M. Schneider, Guy B. Wallace and Wendy E. Musell,
Schneider & Wallace, San Francisco, California, and Kath-
leen McCormac, McCormac & Associates, San Francisco,
California, for the plaintiffs-appellants.
Paula Champagne, Littler Mendelson, P.C., San Francisco,
California, and Kenneth R. O’Brien and Dylan W. Wiseman,
Littler Mendelson, Sacramento, California, for the defendant-
appellee.
Claudia Center, The Legal Aid Society-Employment Law
Center, San Francisco, California, for the amicus curiae.
4690 LEONEL v. AMERICAN AIRLINES, INC.
ORDER
The opinion filed on March 4, 2005, slip op. 2583, 400
F.3d 702 (9th Cir. 2005), is amended as follows:
At slip op. 2596, line 9, insert a new footnote at the end of
the last sentence after “VI-4.”:
13
We do not suggest that, when a medical examina-
tion 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.
With this amendment, the panel judges have voted to deny
appellee’s petition for panel rehearing. Judges Graber and
Fisher have voted to deny the petition for rehearing en banc,
and Judge Cudahy so recommends.
The full court has been advised of the petition for rehearing
en banc and no judge of the court has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and petition for rehearing
en banc, filed March 25, 2005, is DENIED.
No further petitions for rehearing or petitions for rehearing
en banc will be considered.
OPINION
FISHER, Circuit Judge:
Appellants Walber Leonel, Richard Branton and Vincent
Fusco, who all have the human immunodeficiency virus
(“HIV”), applied for flight attendant positions with American
LEONEL v. AMERICAN AIRLINES, INC. 4691
Airlines (“American”). Although they went through the appli-
cation process at different times, the process was essentially
the same for all of them. American interviewed them at its
Dallas, Texas, headquarters and then issued them conditional
offers of employment, contingent upon passing both back-
ground checks and medical examinations. Rather than wait
for the background checks, American immediately sent the
appellants to its on-site medical department for medical exam-
inations, where they were required to fill out medical history
questionnaires and give blood samples. None of them dis-
closed his HIV-positive status or related medications. There-
after, alerted by the appellants’ blood test results, American
discovered their HIV-positive status and rescinded their job
offers, citing their failure to disclose information during their
medical examinations.
The appellants, all California residents, now challenge
American’s medical inquiries and examinations as prohibited
by the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101 et seq. (1999), and California’s Fair Employment and
Housing Act (“FEHA”), Cal. Gov’t Code § 12900 et seq.
(1999). They argue that American could not require them to
disclose their personal medical information so early in the
application process — before the company had completed its
background checks such that the medical examination would
be the only remaining contingency — and thus their nondis-
closures could not be used to disqualify them. They further
contend that American violated their rights to privacy under
the California Constitution by conducting complete blood
count tests (“CBC”s) on their blood samples without notifying
them or obtaining their consent.
The district court had diversity jurisdiction over the appel-
lants’ individual suits; it consolidated the actions and granted
American’s motion for summary judgment on all claims. We
have jurisdiction over the consolidated appeals under 28
U.S.C. § 1291. We hold that the appellants have raised mate-
4692 LEONEL v. AMERICAN AIRLINES, INC.
rial issues of fact as to all appealed claims except Fusco’s
claim of intentional infliction of emotional distress.
I.
Leonel, Branton and Fusco all participated in American’s
standard application process for flight attendant positions.
They first responded to questions in telephone surveys and
then provided more extensive information about their lan-
guage abilities, previous employment and educational back-
grounds in written applications.1 Based on these initial
screening forms, American selected the appellants to fly to the
company’s headquarters in Dallas, Texas, for in-person inter-
views.
Leonel, Branton and Fusco flew to Dallas at American’s
expense on March 25, 1998, June 25, 1998 and May 27, 1999,
respectively. There, they participated first in group interviews,
and then, having been chosen to progress in the application
process, in individual interviews. Immediately after these
interviews, members of the American Airlines Flight Atten-
dant Recruitment Team extended the appellants conditional
offers of employment. Written letters that accompanied the
oral offers read:
At this point in our recruiting process, I am pleased
to make you a conditional offer of employment as a
flight attendant with American Airlines. It is impor-
tant, however, that you fully understand the condi-
tions of this offer as they are detailed below. . . . Our
offer is contingent upon your successful completion
of a drug test, a medical examination, and a satisfac-
tory background check . . . .2
1
Among the terms specified on the written application, the appellants
agreed to the following: “I understand I will be terminated if I provide
false or fraudulent information on this application.”
2
Fusco’s conditional offer letter, issued approximately one year after
Leonel’s and Branton’s letters, used slightly different language: “We are
LEONEL v. AMERICAN AIRLINES, INC. 4693
After making the offers, American Airlines representatives
directed the appellants to go immediately to the company’s
medical department for medical examinations.
There, the appellants were instructed to fill out series of
forms.3 One, a “Notice and Acknowledgment of Drug Test,”
informed them that they would be asked to provide a urine
specimen which would be tested for certain specified drugs,
and solicited their written consent for the testing. This form
also required them to list all medications they were taking at
the time. None of the appellants listed the medications he was
taking for HIV.
American also required the appellants to complete medical
history forms that asked whether they had any of 56 listed
medical conditions, including “blood disorder” (on Branton’s
and Leonel’s forms) and “blood disorder or HIV/[AIDS]” (on
Fusco’s form). Here, too, none of the appellants disclosed his
HIV-positive status. Fusco, who participated in the applica-
tion process approximately 14 months after Branton and 11
months after Leonel, also had to sign an “Applicant Non-
Disclosure Notice,” which advised that during the examina-
tion he would be asked detailed and personal questions about
his medical history and that it was important to disclose all
conditions fully because of American’s public safety responsi-
bilities.4 After completing the forms, the appellants met with
pleased to offer you the position of flight attendant. This conditional offer
of employment is contingent upon your successful completion of a drug
test and medical examination. Additionally, you will be subject to an
employment history verification and a possible criminal history records
check.”
American also required the appellants to pass a drug test and comply
with Department of Transportation drug and alcohol rules. Those require-
ments are not at issue here.
3
The appellants testified that American’s representatives did not explain
at this or any later stage what the medical examination would entail.
4
The Notice stated:
You are about to be asked some very detailed and personal ques-
4694 LEONEL v. AMERICAN AIRLINES, INC.
nurses to discuss their medical histories. Again they said noth-
ing about their HIV-positive status or relevant medications
despite questions asking for that kind of information.
At some point during the appellants’ medical examinations,
nurses drew blood samples. Unlike the urinalysis procedure,
American did not provide notice or obtain written consent for
its blood tests. Nor did any of the company’s representatives
disclose that a complete blood count would be run on the
blood samples.5 When Fusco explicitly asked what his blood
would be tested for, a nurse replied simply, “anemia.”
A few days after the appellants’ medical examinations,
American’s medical department ran CBC tests on their blood
samples and discovered that they had elevated “mean corpus-
cular volumes” (“MCV”s). According to American’s medical
expert, Dr. McKenas, elevated MCV levels result from (1)
alcoholism (approximately 26% of cases); (2) medications for
HIV, seizure disorders, chemotherapy or transplants (approxi-
mately 38% of cases) and (3) sickle cell disease, bone marrow
disorder, folate deficiency or liver disorder (approximately
36% of cases). The appellants’ expert, Dr. Shelley Gordon,
tions about your medical history. It is very important that you be
truthful and complete in your statements about your health. . . .
Your actual medical condition — even if you think it is a minor
one or one which you consider private — is relevant to the com-
pany’s duty [of safety to the general public]. [The company does
not discriminate against persons with disabilities and will adhere
to the confidentiality requirements of the ADA.] However, if you
falsify . . . any information about your health, it will be consid-
ered . . . grounds for non-hire . . . . If you do not provide com-
plete information today, it will be considered a falsification.
5
A CBC test is a comprehensive blood test used to measure the quantity,
size and volume of blood cells. American’s former Corporate Medical
Director and Director of Integrated Health Management, Dr. David
McKenas, explained that American “uses the CBC test to determine
whether an applicant has a sufficient oxygen-carrying capacity to perform
his duties in a high-altitude environment.”
LEONEL v. AMERICAN AIRLINES, INC. 4695
testified that approximately 99% of individuals with HIV
have elevated MCV levels. As nothing in any of the appel-
lants’ medical histories indicated cause for an elevated MCV
level, American wrote the appellants and requested explana-
tions for the results. All of the appellants, acting through their
personal physicians, then disclosed their HIV-positive status
and medications.
After learning that the appellants had HIV, American’s
medical department sent forms to the company’s recruiting
department stating, as final dispositions, that the appellants
“[did] not meet AA medical guidelines.” The forms also spec-
ified the ground on which the appellants had failed to meet
the medical guidelines as “nondisclosure.” The recruiting
department then wrote the appellants and rescinded their con-
ditional offers of employment. The rescission letters stated:
You received an offer of employment . . . condi-
tioned upon your clearing our medical process and
background check. Unfortunately, I have been
informed by our Medical Department that you failed
to be candid or provide full and correct information.
Consequently, I am withdrawing our conditional
offer of employment due to your inability to fulfill
all conditions.
....
Because American Airlines strictly adheres to the
requirements of the [ADA], I have not been
informed of your particular situation. American Air-
lines will consider for employment any qualified
individual if they can safely perform the essential
functions of the job . . . . However, the Company
will not tolerate willful omissions of fact on its
employment applications . . . .
4696 LEONEL v. AMERICAN AIRLINES, INC.
Upon learning that their offers had been rescinded, the
appellants brought individual suits against American. Fusco
and Branton originally filed their respective claims in the Cal-
ifornia courts; American removed those cases to the United
States District Court for the Northern District of California
based on diversity jurisdiction. Leonel brought suit in the dis-
trict court in the first instance. The district court dismissed
Leonel’s direct claims that the examinations violated FEHA
and the ADA in June 2001.6 It then consolidated the appel-
lants’ cases and, in April 2003, granted summary judgment
for American on all claims.
The appellants appeal their claims brought under Califor-
nia’s FEHA, right to privacy law, tort of intentional infliction
of emotional distress and Unfair Competition Law (“UCL”),
which provides an independent cause of action for business
practices that violate other laws. Cal. Bus. & Prof. Code
§ 17200 et seq.; see Kasky v. Nike, Inc., 45 P.3d 243, 249
(Cal. 2002), cert. dismissed, 123 S. Ct. 2554 (2003) (per
curiam). Because the UCL and tort claims are predicated on
the substantive law of FEHA, the ADA or the California Con-
stitution, the questions before us are (1) whether American’s
medical examinations were lawful under the ADA7 and FEHA8
and (2) whether the CBC tests violated the appellants’ rights
to privacy as protected by the California Constitution.9
6
Leonel has not appealed these claims.
7
None of the appellants is making a direct ADA claim. The ADA
remains central to our legal analysis, however, because FEHA — upon
which all the appellants rely — incorporates the ADA, and because Leo-
nel’s UCL claim is predicated on a violation of the ADA.
8
Branton and Fusco bring claims directly under FEHA, and all three
appellants bring claims under the UCL predicated on FEHA.
9
Fusco appeals summary judgment on his privacy claim and his inten-
tional infliction of emotional distress claim based on the right to privacy.
All three appellants appeal their UCL claims predicated on the right to pri-
vacy.
LEONEL v. AMERICAN AIRLINES, INC. 4697
II.
We review de novo the district court’s summary judgment
order. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.
2000) (en banc). We must determine “whether, viewing the
evidence in the light most favorable to the nonmoving party,
there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.”
Id.
III.
[1] The federal Americans with Disabilities Act and Cali-
fornia’s Fair Employment and Housing Act prohibit employ-
ers from refusing to hire job applicants whose disabilities
would not prevent them from “perform[ing] the essential
functions of the job with reasonable accommodation.” Allen
v. Pac. Bell, 348 F.3d 1113, 1114 (9th Cir. 2003) (per
curiam). To this end, the ADA and FEHA not only bar inten-
tional discrimination, they also regulate the sequence of
employers’ hiring processes. Both statutes prohibit medical
examinations and inquiries until after the employer has made
a “real” job offer to an applicant. See 42 U.S.C. § 12112(d)
(1999);10 Cal. Gov’t Code § 12940(d) (1999).11 “A job offer
10
In 1998 and 1999, when the appellants applied for flight attendant
positions with American, the ADA provided that an employer should “not
conduct a medical examination or make inquiries of a job applicant as to
whether [he had] a disability or as to the nature or severity of such disabil-
ity” except that an employer could “require a medical examination after
an offer of employment ha[d] been made to a job applicant and prior to
the commencement of the employment duties of such applicant and
[could] condition an offer of employment on the results of such examina-
tion.” 42 U.S.C. § 12112(d)(3) (1999).
11
FEHA includes this requirement through incorporation of the ADA.
See Cal. Gov’t Code § 12940(d) (1999) (stating that employers may make
job-related medical inquiries “[e]xcept as provided in the [ADA] and the
regulations adopted thereto”); see also 2 C.C.R. § 7294.0 (stating that it
is unlawful to ask general questions on disability pre-employment but that
4698 LEONEL v. AMERICAN AIRLINES, INC.
is real if the employer has evaluated all relevant non-medical
information which it reasonably could have obtained and ana-
lyzed prior to giving the offer.” Equal Employment Opportu-
nity Commission, ADA Enforcement Guidance:
Preemployment Disability-Related Questions and Medical
Examinations, 17 (1995) (“EEOC’s ADA Enforcement Guid-
ance”).12 To issue a “real” offer under the ADA and FEHA,
therefore, an employer must have either completed all non-
medical components of its application process or be able to
demonstrate that it could not reasonably have done so before
issuing the offer.
The ADA recognizes that employers may need to
conduct medical examinations to determine if an
applicant can perform certain jobs effectively and
safely. The ADA requires only that such examina-
tions be conducted as a separate, second step of the
selection process, after an individual has met all
other job pre-requisites.
Equal Employment Opportunity Commission, Technical
Assistance Manual on the Employment Provisions of the
ADA, VI-4 (1992) (“EEOC’s Technical Assistance Manual”).
This two-step requirement serves in part to enable appli-
cants to determine whether they were “rejected because of
disability, or because of insufficient skills or experience or a
bad report from a reference.” EEOC’s ADA Enforcement
Guidance, 1. When employers rescind offers made condi-
employers may “condition an offer of employment on the results of a med-
ical examination conducted prior to the employee’s entrance on duty in
order to determine fitness for the job in question”); Assembly Judiciary
Committee, at 2-3 (Jan. 22, 1992) (“This bill . . . only permit[s] medical
examinations after an offer of employment.”)
12
When interpreting the ADA, we look to the Equal Employment
Opportunity Commission’s interpretations for persuasive guidance. See,
e.g., Harris v. Harris & Hart, Inc., 206 F.3d 838, 842 (9th Cir. 2000).
LEONEL v. AMERICAN AIRLINES, INC. 4699
tional on both non-medical and medical contingencies, appli-
cants cannot easily discern or challenge the grounds for
rescission. When medical considerations are isolated, how-
ever, applicants know when they have been denied employ-
ment on medical grounds and can challenge an allegedly
unlawful denial.
The two-step structure also protects applicants who wish to
keep their personal medical information private. Many hidden
medical conditions, like HIV, make individuals vulnerable to
discrimination once revealed. The ADA and FEHA allow
applicants to keep these conditions private until the last stage
of the hiring process. Applicants may then choose whether or
not to disclose their medical information once they have been
assured that as long as they can perform the job’s essential
tasks, they will be hired. See id. at VI-3 - VI-4.13
[2] American’s offers to the appellants here were by their
terms contingent not just on the appellants successfully com-
pleting the medical component of the hiring process but also
on the completion of a critical non-medical component:
undergoing background checks, including employment verifi-
cation and criminal history checks.14 Other courts have found
offers not real, and medical examinations thus unlawfully pre-
mature, when an offer remained contingent upon a polygraph
test, personal interview and background investigation, see
Buchanan v. City of San Antonio, 85 F.3d 196, 199 (5th Cir.
1996), or upon completion of an application form, criminal
background check and driver’s test. See Downs v. Mass. Bay
Transp. Auth., 13 F. Supp. 2d 130, 138 (D. Mass. 1998); see
13
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.
14
The company’s Manager of Flight Service Procedures, Julie Bourk-
Suchman, testified that American also might rescind a conditional offer if
a candidate were unruly on the plane ride home or had a visible tattoo.
4700 LEONEL v. AMERICAN AIRLINES, INC.
also O’Neal v. City of New Albany, 293 F.3d 998, 1009 (7th
Cir. 2002) (upholding medical inquiries made after the
employer issued an offer contingent upon a series of medical
inquiries, because “additional medical tests do not render the
offer insufficient.” (emphasis added)). Here, it is undisputed
that American’s offers were subject to both medical and non-
medical conditions when they were made to the appellants
and the appellants were required to undergo immediate medi-
cal examinations. Thus the offers were not real, the medical
examination process was premature and American cannot
penalize the appellants for failing to disclose their HIV-
positive status — unless the company can establish that it
could not reasonably have completed the background checks
before subjecting the appellants to medical examinations and
questioning. It has not done so.
As justification for accelerating the medical examinations,
American’s Manager of Flight Service Procedures, Julie
Bourk-Suchman, explained that the company found it impor-
tant to minimize the length of time that elapsed during the hir-
ing process in order to compete for applicants. But
competition in hiring is not in itself a reason to contravene the
ADA’s and FEHA’s mandates to defer the medical compo-
nent of the hiring process until the non-medical component is
completed. The appellants’ expert, Craig Pratt, a management
consultant, testified that it is “the accepted practice for
employers to complete such [background] checks prior to
conducting a preemployment medical examination of the job
applicant.” American has not established that there are no rea-
sonable alternatives that would address its asserted need for
expedited hiring of flight attendants that would avoid jumping
medical exams ahead of background checks. For instance, it
has not shown why it could not expeditiously have issued two
rounds of conditional offers — the first, after the interviews,
informing applicants that they had reached the final stages of
the application process and would be hired absent problems
with their background checks or medical examinations; and
the second, after completion of the background checks, ensur-
LEONEL v. AMERICAN AIRLINES, INC. 4701
ing employment if the applicant passed the medical examina-
tion.
American also suggests that it conducted the medical exam-
inations before completing the background checks for the
convenience of the applicants. As Bourk-Suchman put it,
“[i]t’s not a business reason. It just has to do with the appli-
cants and trying to have it be convenient for them.” Not only
does this testimony undercut American’s meeting-competition
rationale, applicants’ supposed convenience does not justify
reordering the hiring process in a manner contrary to that set
out by the ADA and FEHA. Congress and the California leg-
islature both have determined that job applicants should not
be required to undergo medical examinations before they hold
real offers of employment. American — even if well-
intentioned — cannot avoid that mandate simply because it
believes doing so will be more convenient for its applicants.
[3] In short, at the summary judgment stage, American has
failed to show that it could not reasonably have completed the
background checks and so notified the appellants before initi-
ating the medical examination process. 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 results. American may be able to
prove that alternatives such as these were not feasible and that
it could not reasonably have implemented the sequence pre-
scribed by the ADA and FEHA, but on this record it has not.
Without such proof, American cannot require applicants to
disclose personal medical information — and penalize them
for not doing so — before it assures them that they have suc-
cessfully passed through all non-medical stages of the hiring
process.
American argues in the alternative that even if the offers
were not real, the company did not violate the ADA or FEHA
4702 LEONEL v. AMERICAN AIRLINES, INC.
because it evaluated the appellants’ non-medical information
before it considered their medical information. Bourk-
Suchman asserted that American’s recruiting department actu-
ally performed the background check for each appellant
before receiving the medical department’s disposition of
“[d]oes not meet AA guidelines.”15 As we have explained,
however, the statutes regulate the sequence in which employ-
ers collect information, not the order in which they evaluate
it.
[4] The words of the ADA and FEHA plainly address when
employers can make medical inquiries or conduct medical
examinations. See 42 U.S.C. § 12112(d)(3) (1999) (“A cov-
ered entity may require a medical examination after an offer
of employment has been made . . . and prior to the com-
mencement of the employment duties.”); Cal. Gov’t Code
§ 12940(d) (1999) (regulating when an employer can make an
“inquiry . . . which expresses, directly or indirectly, any limi-
tation, specification, or discrimination as to . . . physical dis-
ability [or] medical condition . . . or any intent to make that
limitation, specification, or discrimination” and when an
employer can make “an inquiry as to, or a request for infor-
mation regarding, the physical fitness, medical condition,
physical condition, or medical history of applicants”). As the
EEOC has stated explicitly, “[a]n employer may not ask
disability-related questions or require a medical examination,
even if the employer intends to shield itself from the answers
to the questions or the results of the examination until the
post-offer stage.” EEOC’s ADA Enforcement Guidance, 2.
[5] The focus on the collection rather than the evaluation of
medical information is important to the statutes’ purposes.
15
Bourk-Suchman stated that the company conducted Fusco’s back-
ground check in 1997, when he first applied to work for the company in
another department. The company also reportedly completed Branton’s
and Leonel’s background checks before the medical department issued
their dispositions.
LEONEL v. AMERICAN AIRLINES, INC. 4703
Both the ADA and FEHA deliberately allow job applicants to
shield their private medical information until they know that,
absent an inability to meet the medical requirements, they will
be hired, and that if they are not hired, the true reason for the
employer’s decision will be transparent. American’s attempt
to focus on the evaluation rather than the collection of medi-
cal information squares with neither the text nor the purposes
of the statutes. Whether or not it looked at the medical infor-
mation it obtained from the appellants, American was not
entitled to get the information at all until it had completed the
background checks, unless it can demonstrate it could not rea-
sonably have done so before initiating the medical examina-
tion process. As to that question, we hold that there are
material issues of fact that require reversal of summary judg-
ment on the appellants’ claims that American’s hiring process
violated the ADA and FEHA. We therefore reverse summary
judgment on Branton’s and Fusco’s FEHA claims, Leonel’s
UCL claim predicated on the ADA and all three appellants’
UCL claims predicated on FEHA.
IV.
[6] Article I, section 1 of the California Constitution
declares privacy an inalienable right of the people of Califor-
nia. Cal. Const. Art. I, § 1. The right, in many respects
broader than its federal constitutional counterpart, protects
individuals from the invasion of their privacy not only by
state actors but also by private parties. Am. Acad. of Pediat-
rics v. Lungren, 940 P.2d 797, 808-09 (Cal. 1997). The appel-
lants allege that American violated their protected privacy
rights by performing CBC tests on their blood without provid-
ing notice or obtaining consent.
[7] To prove a claim under the California right to privacy,
a plaintiff must first demonstrate three elements: (1) a legally
protected privacy interest; (2) a reasonable expectation of pri-
vacy under the circumstances; and (3) conduct by the defen-
dant that amounts to a serious invasion of the protected
4704 LEONEL v. AMERICAN AIRLINES, INC.
privacy interest. Hill v. Nat’l Collegiate Athletic Ass’n, 865
P.2d 633, 657 (Cal. 1994). These elements do not constitute
a categorical test, but rather serve as threshold components of
a valid claim to be used to “weed out claims that involve so
insignificant or de minimis an intrusion on a constitutionally
protected privacy interest as not even to require an explana-
tion or justification by the defendant.” Loder v. City of Glen-
dale, 927 P.2d 1200, 1230 (Cal. 1997). The defense should
prevail on its motion for summary judgment if it negates, as
a matter of law, any one of these three threshold elements.
[8] The appellants amply demonstrate the first and third
Hill elements. As a matter of law, the drawing and testing of
blood implicate a legally protected privacy interest. See Hill,
865 P.2d at 657-58. “A person’s medical profile is an area of
privacy infinitely more intimate, more personal in quality and
nature than many areas already judicially recognized and pro-
tected.” Id. at 658 (quoting Div. of Med. Quality v. Ghe-
rardini, 156 Cal. Rptr. 55, 60 (Ct. App. 1979)); cf. Skinner v.
Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989) (hold-
ing, for the purposes of the federal constitutional right to pri-
vacy, that a blood test “infringes an expectation of privacy
that society is prepared to recognize as reasonable” and that
“chemical analysis of the sample to obtain physiological data
is a further invasion of the tested employee’s privacy inter-
ests”).
Further, if the blood tests infringed upon a reasonably held
expectation of privacy, the infringement would not be consid-
ered de minimis. “The disclosure of . . . private information
through testing a bodily substance obtained from an individ-
ual . . . constitute[s] [an] intrusion[ ] upon the applicant’s con-
stitutional privacy interests that [is] not insignificant or de
minimis — [an] intrusion[ ] that would not be permissible in
the absence of reasonable justification.” Loder, 927 P.2d at
1233.
Whether appellants’ privacy claims may proceed thus
depends on whether they have demonstrated a material issue
LEONEL v. AMERICAN AIRLINES, INC. 4705
of fact as to the reasonableness of their expectations of pri-
vacy. Whether a party has a reasonable expectation of privacy
is a context-specific inquiry that should not be adjudicated as
a matter of law unless “the undisputed material facts show no
reasonable expectation of privacy.” Hill, 865 P.2d at 657. To
assess the reasonableness of the appellants’ expectations, we
consider the customs, practices and physical settings sur-
rounding the blood tests, id. at 655, placing particular empha-
sis on any notice provided or consent obtained. See Cramer
v. Consol. Freightways Inc., 255 F.3d 683, 696 (9th Cir.
2001) (en banc); Hill, 865 P.2d at 655.
To the extent that the appellants argue that American’s
mere drawing of their blood (as opposed to the testing of their
blood samples for certain conditions) violated their rights to
privacy, we agree with the district court that the appellants
had no reasonable expectation of privacy as a matter of law.
Under California law, parties have diminished expectations of
privacy in the context of a preemployment medical examina-
tion. See Loder, 927 P.2d at 1232-33. Job applicants should
anticipate that a preemployment medical examination may be
required. Where, as here, the applicants allow nurses to draw
their blood while participating in the preemployment medical
examination, they have consented to some form of a blood
test. Cf. id. (holding that city’s requirement that job applicants
submit to urinalysis drug testing did not violate applicants’
right to privacy where city gave notice and obtained appli-
cants’ written consent for testing).
Nonetheless, by consenting to preemployment blood tests,
the appellants did not consent to any and all medical tests that
American wished to run on their blood samples. Under the
California right to privacy, an applicant has a reasonable
expectation that an employer will not retrieve private medical
information by performing blood tests outside of the “ordi-
nary or accepted medical practice regarding general or pre-
employment medical exams.” Norman-Bloodsaw v. Lawrence
Berkeley Lab., 135 F.3d 1260, 1271 (9th Cir. 1998). “[I]t goes
4706 LEONEL v. AMERICAN AIRLINES, INC.
without saying that the most basic violation possible involves
the performance of unauthorized tests — that is, the noncon-
sensual retrieval of previously unrevealed medical informa-
tion that may be unknown even to plaintiffs.” Id. at 1269. In
the specific context of preemployment medical examinations,
“[t]he question of what tests plaintiffs should have expected
or foreseen depends in large part upon what preplacement
medical examinations usually entail, and what, if anything,
plaintiffs were told to expect.” Id. at 1267.
The circumstances surrounding American’s blood tests
gave the appellants little reason to expect that comprehensive
scans would be run on their blood. American’s representatives
“ushered” the appellants to the medical department immedi-
ately after their interviews; Leonel testified that he felt rushed
both to the medical department and then through the examina-
tion process. Once at the medical department, the appellants
completed multiple forms, none of which indicated that the
medical examinations would include blood tests or, if so,
what the scope of such blood tests would be. Among these
forms, the appellants filled out the Notice and Acknowledg-
ment of Drug Test advising them that the examination
included a urinalysis and obtaining their written consent for
the specific tests to be run on their urine specimens. They
received no comparable form for the blood tests.
American suggests that its medical questionnaire, which
made wide-ranging medical inquiries, should have put appel-
lants on notice of the comprehensive blood test. We have
already rejected this argument:
It is not reasonable to infer that a person who
answers a questionnaire upon personal knowledge is
put on notice that his employer will take intrusive
means to verify the accuracy of his answers. . . .
Indeed, a reasonable person could conclude that by
completing a written questionnaire, he has reduced
LEONEL v. AMERICAN AIRLINES, INC. 4707
or eliminated the need for seemingly redundant and
even more intrusive laboratory testing . . . .
Norman-Bloodsaw, 135 F.3d at 1268.
Nor did the nurses who assisted the appellants provide
information about the nature of the blood tests. Indeed, in
responding to Fusco’s question about the scope of the test, his
nurse provided incomplete and possibly misleading informa-
tion — that his blood sample would be tested for anemia, only
one of the many conditions potentially revealed by the CBC.16
American counters that the appellants should nonetheless
have expected that a test like the CBC would be run on their
blood samples. According to American’s former Corporate
Medical Director, Dr. McKenas, the CBC is a “standard and
routine blood count routinely requested by physicians’
offices, clinics and hospitals.” American offers no evidence,
however, to demonstrate that conducting a CBC without
notice or consent is standard practice, either in a traditional
medical setting or, more to the point, in a preemployment
medical examination in which the applicants do not share a
typical medical patient’s interest in having his blood subjected
to a comprehensive screening. As Dr. McKenas himself
acknowledged, the appellants did not enter traditional doctor-
patient relationships with American’s medical staff.
[9] On this record, American has not demonstrated the
absence of a material issue of fact as to the reasonableness of
the appellants’ expectations that American would not, without
first notifying them or obtaining their consent, perform CBC
tests on their blood samples. Accordingly, we reverse sum-
16
American’s lead nurse, Nurse Becky Doom, later stated that when
asked about the blood tests, nurses often replied either that the test was a
complete blood count or that the blood would be tested for anemia.
4708 LEONEL v. AMERICAN AIRLINES, INC.
mary judgment on Fusco’s privacy claim and all three appel-
lants’ UCL claims predicated on the right to privacy.17
If, on remand, the appellants prove that they had reasonable
expectations of privacy as a threshold matter, the district court
must then conduct a traditional balancing test — “weighing
and balancing [American’s] justification for the conduct in
question against the intrusion on [the appellants’] privacy
resulting from the conduct.” Alfaro v. Terhune, 120 Cal. Rptr.
2d 197, 210 (Ct. App. 2002); see also Loder, 927 P.2d at 1230
(“[Hill’s threshold] elements do not eliminate the necessity
for weighing and balancing the justification for the conduct in
question against the intrusion on privacy resulting from the
conduct in any case that raises a genuine, nontrivial invasion
of a protected privacy interest.”).
V.
[10] Summary judgment must also be reversed on the
appellants’ unfair competition claims. California’s UCL
defines “unfair competition” to include “any unlawful, unfair
or fraudulent” business practice, including actions of employ-
ers taken with respect to their employees. Cal. Bus. & Prof.
Code § 17200; see Wilkinson v. Times Mirror Corp., 264 Cal.
Rptr. 194, 206 (Ct. App. 1989). Under the statute, “[u]nfair
competition encompasses anything that can properly be called
a business practice which at the same time is forbidden by
law.” Id. The UCL thus “permits violations of other laws to
be treated as unfair competition that is independently action-
able.” See Kasky, 45 P.3d at 249.
[11] Because the appellants have raised a material issue of
fact as to whether American’s medical examinations were
unlawful under the ADA and FEHA, summary judgment must
be reversed on Leonel’s UCL claim predicated on the ADA
17
Fusco’s claim for intentional infliction of emotional distress, which
relies on his right to privacy, is discussed separately below.
LEONEL v. AMERICAN AIRLINES, INC. 4709
and Branton and Fusco’s UCL claims predicated on FEHA.
See Alch v. Superior Court, 19 Cal. Rptr. 3d 29, 77 (Ct. App.
2004) (holding that age discrimination against employees
under FEHA constitutes an unlawful business practice under
the UCL); Lazar v. Hertz Corp., 82 Cal. Rptr. 2d 368, 375
(Ct. App. 1999) (“In effect, the UCL borrows violations of
other laws — such as the state’s antidiscrimination laws —
and makes those unlawful practices actionable under the
UCL.”). Because the appellants have raised a material issue
of fact as to the lawfulness of American’s blood tests under
the California Constitution, summary judgment must also be
reversed on the appellants’ UCL right to privacy claims.
VI.
[12] Finally, Fusco appeals the district court’s grant of
summary judgment to American on his intentional infliction
of emotional distress claim. Fusco has not demonstrated that
American’s blood tests, even if unlawful, were so “extreme
and outrageous” as to surpass “all bounds of decency.” Kras-
lawsky v. Upper Desk Co., 65 Cal. Rptr. 2d 297, 307 (Ct.
App. 1997). Summary judgment on this final claim is there-
fore affirmed.
The judgment of the district court is AFFIRMED in part
and REVERSED in part and the case REMANDED for fur-
ther proceedings. The parties shall bear their own costs on
appeal.