Monday December 19, 2016 WELA filed an amicus brief in EEOC v. Burlington Norther Santa Fe Railroad Company (“BNSF”).  A job applicant was offered a position with BNSF conditional upon passing a background check and a medical physical.  After a medical review by BNSF, it required the applicant to produce a current MRI at the cost of $2,000. The applicant informed BNSF that he was unable to afford the testing.  BNSF refused to pay for the medical testing, and it considered the application withdrawn.   The EEOC filed suit alleging that the withdrawal of the conditional job offer violated the ADA because BNSF “regarded” the applicant as disabled, and he was not obligated to pay for the medical testing that the employer required.  Summary judgment was granted for the EEOC and the employer appealed.

WELA filed an amicus brief and argued that a requirement that the applicant pay for the employer-required medical testing would undermine the purpose of the ADA, and that conduct of the employer constitutes “facial discrimination.”   See WELA’s brief here.