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.

Back to Health Law Advisor Blog

Search This Blog

Blog Editors


Related Services



Jump to Page


Sign up to receive an email notification when new Health Law Advisor posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.