Nathaniel M. Glasser

In a matter emphasizing the importance of neutral hiring policies, the U.S. Court of Appeals for the Sixth Circuit has affirmed summary judgment in favor of a Kentucky hospital system that refused to hire two nurses who had restrictions on their professional licenses after they participated in a state-approved drug rehabilitation program.  The nurses alleged the refusal to hire decisions violated the Americans with Disabilities Act, but the Sixth Circuit held that the evidence showed the hospital had a neutral practice of denying employment to nurses with current or previous restrictions on their licenses, regardless of whether the restriction was due to the applicant’s disability or because of some other reason.

In Lopreato v Select Specialty Hospital (6th Cir 2016), No. 15-5011 (6th Cir. Jan. 29, 2016), the plaintiffs were two nurses with drug addictions who both had been terminated from another hospital after stealing narcotics for personal use.  The plaintiffs thereafter enrolled in a state-sanctioned drug rehabilitation and signed program agreements that placed restrictions on their nursing licenses.  Although the nurses later found employment with Cardinal Hill Specialty Hospital, they had to re-apply for their positions when Select Specialty Hospital-Northern Kentucky began to take over the long-term acute care hospital in which they worked.

Enforcing a practice not to hire nurses with license restrictions, Select refused to hire the plaintiffs despite their positive performance reviews from Cardinal.  Citing the Supreme Court’s decision in Raytheon v Hernandez 540 US 44 (2003), 540 U.S. 44 (2003), the appellate court concluded the neutral policy constituted a legitimate, nondiscriminatory reason to refuse to hire the nurses.  Notably, the court held, “an employer’s decision to reject an applicant because the applicant did not have a neutral characteristic which the employer requires of all employees is legitimate and nondiscriminatory, even if a rejected applicant lacks the desired characteristic because he is disabled.”

This case highlights the importance of creating and consistently applying neutral workplace policies, as doing so generally evidences a legitimate, nondiscriminatory reason to take an adverse employment action.  Thus, health care employers may implement similar policies for the protection of their patients – provided the policies are consistently applied.  In Lopreato, the Sixth Circuit left open the possibility that an argument could be made that Select’s policy disproportionately impacts drug addicts, but refused to consider that argument in this case because the plaintiffs had not previously asserted a disparate impact claim. Employers should consult with Counsel to set up an appropriate and regular review of policies to ensure that they do not have a disparate impact.