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47 Title VII liability even if the policy is based on state tain circumstances. For example, the Iowa Supreme law.423 As the Second Circuit remarked: "Title VII ex- Court has held that if the accuracy of the facts underly- plicitly relieves employers from any duty to observe a ing a standardized employment requirement has been state hiring provision `which purports to require or tested subject to a rule-making process allowing inter- permit' any discriminatory employment practice."424 ested parties to participate, such requirements may be This issue of municipal liability depends on the law of a conclusive basis for decision making. However, where the particular circuit and state.425 absolute rules have not been adopted, individualized State law may bar prohibiting classes of individuals assessments are required. Thus, where the city had not from receiving CDLs based on impairment, instead re- formally adopted a minimum cardiopulmonary per- quiring case-by-case evaluations of the ability of dis- formance requirement for spirometry tests for firefight- abled individuals to safely perform job-related responsi- ers, an employee adversely affected by the requirement bilities. Wisconsin's Fair Employment Act, for example, was entitled to challenge its factual basis.428 requires that such determinations cannot be made by a State law may require that employers may only re- general rule affecting a class of individuals, but must be quire medical exams as a condition of employment-- made on a case-by-case basis, and a Wisconsin court that is for job applicants and current employees--if the has held that this provision applies to state regulations employer pays for the exam. Violations may result in a on physical standards for school bus drivers.426 Bothum fine.429 State law may also limit the scope of medical concerned a school bus driver who was denied renewal inquiries.430 of his license because of his use of an oral hypoglycemic Takeaway: Passing muster under the ADA may not agent to control his Type 1 diabetes. The court ad- be sufficient to avoid liability under state law. In evalu- dressed the question of how the above requirement of ating risks under state law of implementing physical Wisconsin's Fair Employment Act should be applied to ability testing, it is advisable to evaluate the scope of the Wisconsin statute requiring applicants for school state nondiscrimination law to determine whether state bus driver's licenses to pass physical exams and the law is more expansive than the ADA. implementing regulation prohibiting without exception a person using a hypoglycemic agent from obtaining a C. Age Discrimination in Employment Act school bus driver's license. The court rejected the Wis- ADEA prohibits discrimination against individuals consin Department of Transportation's argument that age 40 years or older in any aspect of employment. the only way to harmonize the two statutes was to read ADEA does allow employers to favor workers age 40 the transportation provision as an exception to the Fair years and older, even when doing so may adversely af- Employment Act. Instead the court held that the de- fect a younger worker who is age 40 years or older. partment was free to establish physical standards for licensing school bus drivers "so long as those standards 428 do not constitute a general rule `prohibit[ing]...licensure Smith v. Des Moines Civil Serv. Comm'n, 561 N.W.2d 75 (Iowa 1997). In Smith a firefighter failed a stress test recom- of handicapped individuals in general or a particular mended by a consultant to the city for pulmonary function class of handicapped individuals,' within the meaning of testing of firefighters required to wear a self-contained breath- sec. 111.34(2)(b), Stats [Fair Employment Act]." 427 ing apparatus (SCBA). Four other doctors found the firefighter State law may also require individualized determi- fit for duty. Because the stress test requirement had not been nations of physical performance ability, rather than formally adopted, the court reviewed the individual circum- relying solely on standardized requirements, under cer- stances of the plaintiff, found that the totality of the evidence showed that the plaintiff was physically capable of performing 423 fire suppression duties as required, and ordered the plaintiff Conroy v. City of Phila., 421 F. Supp. 2d 879 (E.D. Penn. reinstated in his job. The same plaintiff had unsuccessfully 2006). See also Andrews & Risher, supra note 31, at 23, 24 sued the City of Des Moines under the ADEA and ADA. Smith,; United States v. N.Y. State v. City of Des Moines, Iowa, 99 F.3d 1466 (8th Cir. 1997) (hold- Dep't of Motor Vehicles, 82 F. Supp. 2d 42 (E.D.N.Y. 2000) (fact ing the city met its burden on establishing test was necessary that state agencies' regulations, basis for bus company's re- to safe and effective job performance; rejecting as not probative fusal to hire amputee, were invalidated under ADA and the opinion of other physicians who had examined plaintiff; couldn't have interfered with employment relationship between finding plaintiff not disabled under ADA). the driver/bus company/school district, didn't preclude agencies 429 ARIZ. REV. STAT. 11-3-203. Medical examination as condi- from being liable to driver under ADA where agencies intended tion of employment, see Arkansas Laws relating to Labor, Ark. to enforce regulations). 424 DOL, Oct. 2008, at 50, Guardians Ass'n v. Civil Serv. Comm'n of N.Y., 630 F.2d; N.D.C.C. 79, 105 (2d Cir. 1980) (quoting 42 U.S.C. 2000e-7 (1976)). 34-01-15, Employer to pay for medical examination--Penalty 425 See STUART M. SPEISER, CHARLES F. KRAUSE, & ALFRED for violation,; R.I. GEN. W. GANS, 5 THE AMERICAN LAW OF TORTS, at ch. 17, Tort LAWS 28-6.2-1 Cost of physical examination [preemploy- Claims Acts; Liability of Public Sovereignties or Bodies (1988). ment], See 17:23 and 17:24 for discussion of state tort claims acts 1.HTM. in some 30 states. 430 Under California law employees are not required to dis- 426 Bothum v. State Dep't of Transp., 134 Wis. 2d 378, 396 close diagnosis to their employer. LA Metro response to report N.W.2d 785 (1986). questionnaire, IV.A, Tests and standards for current employ- 427 Id. at 383, 787. ees: In general.