Ninth Circuit certifies question in invasive medical exam case to California Supreme Court
March 16, 2022 — A Ninth Circuit panel today certified a novel question of California law in the firm’s class action against U.S. Healthworks and Concentra to the California Supreme Court, which will now decide whether to hear the case. Plaintiffs alleged that U.S. Healthworks and a group of Concentra entities systematically violated the Fair Employment and Housing Act (FEHA) and other laws by subjecting them and hundreds of thousands of California job applicants to dozens of illegal, discriminatory, irrelevant, and invasive medical inquiries as a condition of employment.
In their opening brief on appeal, the plaintiffs requested that the pure questions of California law in the case be referred to the California Supreme Court. The firm was supported in its position by the State of California and a consortium of disability rights advocates. The Ninth Circuit explained the basis for its certification request:
Whether FEHA’s definition of the term “employer” includes a business entity acting as an employer’s agent is an unresolved question of California law with significant public policy implications. California has millions of employees who could be impacted by a decision defining the scope of liability for business entities acting as agents of their employers. To protect employees, FEHA instructs courts to construe its provisions “liberally” in accordance with its broad remedial purposes, Cal. Gov’t Code § 12993(a), but it is unclear whether the Legislature intended FEHA’s definition of “employer” to create direct liability for business entities acting only as agents of an employer.
Plaintiffs and the putative class are represented by firm lawyers Randy Erlewine and Kyle O’Malley. For oral argument before the Ninth Circuit, see here.
UPDATE – April 5, 2022 – Today the firm filed a letter in the California Supreme Court in support of the Ninth Circuit’s request for clarity about the scope of FEHA’s protections for workers.