October 23, 2026
Allegations of Age Discrimination Strike Again (and add ADA to the mix)!
You may have read the article describing a lawsuit filed against an employer alleging discrimination and retaliation under the Age Discrimination in Employment Act (ADEA). The ADEA covers employers with 20 or more employees and prohibits discrimination against individuals age 40 or above.
In this case, perception again seems to be an issue and the claim alleges discrimination under the Americans with Disabilities Act, too. A hospital required physicians age 70 or above who were seeking (re)appointment to undergo one or more medical exams that they did not require of physicians who were under the age of 70.
So? The court points out, “it is not unlawful under the ADEA to make age-based employment decisions ‘where age is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operations of the particular business.” In this case, the BFOQ is patient safety. Under the ADA, an employer “shall not require a medical examination . . . of an employee . . . unless such examination or inquiry is shown to be job-related and consistent with business necessity.”
So why did the judge permit this case to go to trial writing, “This case cannot be tried on the papers”? There are at least two key questions to be answered:
- “whether the [medical exam] ‘genuinely serves’ the business necessity of keeping patients safe” and
- if it does, whether the exam is “overly broad and not sufficiently tailored to serve this business necessity.”
Take Aways? If you have job pre-requisites such as any test, exam, inventory, etc., consider:
- Has it been validated so you can demonstrate that it reliably measures the KSA’s you are trying to assess?
- Is it administered only to certain individuals who are predominantly members of a certain protected group?
- If yes, is that based on a business necessity such as safety and is that assessment is “no broader or more intrusive” than an alternative assessment might be that would serve the same purpose?
Of course, review all these with your company’s employment counsel before implementing the assessment procedure.
