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The Risks of Withdrawing a Conditional Offer of Employment Based on Medical Reasons

Nov 13, 2017 | Written by: Richard P. Cushing, Esq. |

The recent unpublished Appellate Division decision of Philip Marchesani v. J.B. Hunt Transportation, Inc., et al., Appellate Division, Docket No. A-4751-15T2 (decided October 31, 2017), illustrates the challenges faced by employers who issue a conditional offer of employment. 

In that case, the defendant, a trucking company, offered the plaintiff a conditional offer of employment; the condition was he needed to obtain a medical certification proving that he was physically qualified in accordance with United States Department of Transportation (“DOT”) regulations.  The trucking company would only accept a DOT certification from a physician named Dr. Reddy. 

Dr. Reddy found the plaintiff to be temporarily disqualified because she needed further information about certain narcotic and other drugs that the plaintiff had taken due to a pinched cervical nerve.  The doctor indicated she never received that information, but would certify if she received it.  The conditional offer, which had been issued on October 15, was withdrawn on November 11 after Dr. Reddy reported she did not receive the requested information.  The plaintiff asserted that he had supplied all the information.  He also secured a report from another doctor establishing he met the DOT certification requirements.  In his lawsuit, the plaintiff alleged that the defendants withheld a job from him based on his disability, the pinched nerve.  The trial court granted the defendant summary judgment, finding that its reasons for denying the job were non-discriminatory. 

The Appellate Division reversed the trial court’s finding, pointing out that the plaintiff had the burden of proving the elements of a prima facie case.  In other words, that there was sufficient evidence to show the action of the defendant may have been based on unlawful discrimination.  Relying on precedent, the Appellate Division noted that if the plaintiff proved by a preponderance of evidence that he or she (1) belonged to a protected class, (2) applied and was qualified for a position for which the employer was seeking applicants, (3) was rejected despite adequate qualifications, and (4) after rejection the position remained opened and the employer continued to seek applications for persons of the plaintiff’s qualifications, then the plaintiff had made a prima facie case.  The Appellate Division noted that “only a modest showing is necessary to establish a prima facie case,” and the plaintiff had met that standard.

This reversal was based on a very detailed examination of the facts surrounding the application process and subsequent withdrawal.  Essentially, the Appellate Division found there were factual issues as to whether the plaintiff had been told what additional information was required and whether he was fairly given the opportunity to supply that information.  Implicit in the Appellate Division’s reasoning was that the trucking company, after learning that the plaintiff had some preexisting medical problems, pulled the offer without giving him the opportunity to explain his medical conditions because the trucking company did not want to risk hiring an individual with a history of medical problems and drug usage that could lead to workers’ compensation or other claims.

There was one other issue that may have colored the Appellate Division’s thinking.  The employer, in laying out its non-discriminatory reasons for not hiring the plaintiff, argued that an earlier Social Security Disability application of the plaintiff established that he was unqualified as a matter of law.  This argument, while certainly appropriate for trial, lent indirect support to the inference that the employer did not want to take a chance with a person having the plaintiff’s medical history.  I think the Appellate Division probably saw this as evidence that hurt, not helped, the employer’s case.

The Take Away

The conclusion that employers should reach from this case is that once an offer of employment is issued, subject to medical clearance, the offer may not be withdrawn without clear and objective medical evidence to justify the withdrawal.  The employer should make sure that the medical evidence is very clear, the steps taken are well-documented, the medical provider can clearly support his/her medical opinions, and the employee is given a reasonable opportunity to clear up any ambiguities.


Richard P. Cushing, Esq., is a senior partner with Gebhardt & Kiefer, PC.  He is a trial and municipal lawyer who specializes in complex litigation, land use matters, employment law, and the representation of public entities, corporations and insurance companies. Contact Mr. Cushing at 908-735-5161 or via email.