Damages for Failure to Hire Even After Felony Drug Arrest?

the situation

You decide not to hire a job applicant based upon a determination that he is medically unqualified for the job. He then files a charge with the EEOC, claiming that you have discriminated against him based on his actual and perceived disability. About six months later, the applicant is arrested and charged with possession and intent to distribute a controlled substance. Does this arrest (which would have likely prompted his termination had he been an employee) at least limit the damages available to him even if he could succeed on his claim?

the ruling

Maybe not, at least according to a recent decision by a federal court in New York. Echeverri v. The New York City Dept. of Sanitation, et al, Case No. 1:15-cv-00080 (S.D.N.Y. February 3, 2016). Philip Echeverri was looking to be hired by the city’s sanitation department as a sanitation worker. There were some medical requirements of the job—some of which were related to the fact that sanitation workers have to work in extreme weather and are exposed to trauma on the job and have a high rate of injury. Based on a pre-employment blood test, the department determined that Echeverri had a hematologic disorder that disqualified him for the job. Essentially, the department found that Echeverri’s condition and the treatment for the condition exposed him to a high risk of bleeding out and difficulty healing which made him unfit for the job in light of the exposure to significant trauma.

Echeverri thought himself to be in good health and was not even previously aware of his hematologic disorder. Additionally, he had obtained a letter from his doctor clearing him for the job (and had provided that letter to the sanitation department). He disputed his disqualification with the New York City Civil Service Commission and also filed a complaint with the EEOC, claiming discrimination under the ADA. Six months after he filed the charge, he was arrested and charged with possession and intent to sell a controlled substance and criminal possession of a controlled substance.

One of the arguments made by the sanitation department was that, even if Echeverri could succeed on his claim of discrimination, he shouldn’t be able to recover any damages based on the time period after his arrest. After all, new sanitation workers have to undergo an eighteen month probationary period and violation of the department’s policies prohibiting the sale or use of controlled substances can result in suspension or termination. Thus, Echeverri would have been fired even if he had been initially hired.

The court disagreed, finding that this theory was completely speculative. In fact, the court found, it was just as possible (and just as speculative) that if Echeverri had been hired by the department, he would not have resorted to engaging in the conduct that led to his arrest.

the point

In today’s climate, many employers already feel frustrated by the resources they are required to devote to defend against what they perceive to be meritless cases. This case illustrates the breadth of damages that may be claimed by a prospective employee—and how difficult it can be to limit those damages, even where the plaintiff engages in unlawful conduct after his failure to be hired which would have undoubtedly resulted in his termination.