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Discriminatory Aspects of Pre-employment Screening: Low-Back X-ray Examinations in the Railroad Industry

Published online by Cambridge University Press:  24 February 2021

Paul H. Rockey ,
Jane Fantel  and
Gilbert S. Omenn
Paul H. Rockey
Affiliation:
University of Washington; U.S. Public Health Service Hospital, Seattle, Washington
Jane Fantel
Affiliation:
Division of Labor and Industries, State of Washington
Gilbert S. Omenn
Affiliation:
Robert Wood Johnson Clinical Scholars Program, University of Washington; Office of Science and Technology Policy, Executive Office of the President, Washington, D.C.
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Abstract

In screening the majority of job applicants, most of this nation's railroads administer a low-back X-ray examination in an attempt to ascertain the likelihood that the applicant will sustain future work-related low-back pain or injury. Many applicants are rejected for employment on the basis of the X-ray findings. The railroads apparently perceive this screening program as a cost-effective means (1) of decreasing the incidence of compensation claims for work-related injuries, brought against the rail-roads under the Federal Employers' Liability Act (FELA), (2) of reducing the number of lost workdays resulting from low-back pain or injury, and (3) of protecting particularly susceptible workers from job-related hazards.

The authors of this Article submit that low-back X-ray examinations are poor predictors of future low-back pain or injury. They assert that the railroads' use of such examinations misclassifies a substantial number of job applicants as being at increased risk for such pain or injury, and, in consequence, unfairly denies them employment. Furthermore, the authors claim, the screening program has other negative consequences. For example, applicants rejected for railroad employment on the basis of X-ray findings may as a result have difficulty finding jobs in other industries. In addition, they state, there is a potential radiation hazard to examinees. Moreover, both the railroads and those applicants accepted for employment may inappropriately be reassured by normal findings.

On balance, the authors conclude, the screening program has a negative social value. The authors suggest that the program, in effect, erroneously labels many applicants as handicapped, and then denies them employment. Such persons might have legal recourse under federal and state statutes prohibiting employment discrimination against the handicapped.

Type
Articles
Information
American Journal of Law & Medicine , Volume 5 , Issue 3 , Fall 1979 , pp. 197 - 214
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1979

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Footnotes

Dr. Omenn wishes to note that the views expressed herein are not necessarily those of the U.S. government.

References

1 45 U.S.C. §§ 51-60 (1976).

2 For a discussion of back disease in the context of workers’ compensation recovery, see Hadler, Legal Ramifications of the Medical Definition of Back Disease, 89 Ann. Internal Mf.D. 992 (1978).Google Scholar

3 45 U.S.C. §§ 51-60 (1976). The source for the estimate of 550,000 covered workers is Summary Report and Proceedings of the Conference on Low Back X-Rays in Preempi. Oyment Physical Examinations, American College of Radiology, Tucson, Arizona, January 11-14, 1973, at 109 (remarks of Max Rogers).

4 See Panel Discussion, Coverage under F.E.L.A. and the Safety Appliance Acts, 25 Tenn. L. Rev. 141, 144 (1958)Google Scholar (remarks of Truman Hobbs).

5 See W. Prosser, Law of Xorts 326 (4th ed. 1971).

6 Messages and Papers of the President, Vol. 12, at 5486 (Richardson ed. 1897), quoted in Panel Discussion, supra note 4, at 144 (remarks of Truman Hobbs).

7 Ch. 3073, 34 Stat. 232 (1906) (held unconstitutional).

8 207 U.S. 463 (1908).

9 Ch. 149, 35 Stat. 65 (1908).

10 223 U.S. 1 (1912).

11 Ch. 143, 36 Stat. 291 (1910).

12 Ch. 685, 53 Stat. 1404 (1939).

13 45 U.S.C. §§ 51-60 (1976).

14 Wilkerson v. McCarthy, 336 U.S. 53 (1949) (concurring opinion).

15 Fulgham v. Midland Valley Ry., 167 F. 660, 663 (C.C. W.D. Ark., Ft. Smith Div. 1909), rev'd on other grounds sub. nom. Midland Valley Ry. v. Fulgham, 181 F. 91 (1910)Google Scholar.

16 45 U.S.C. §§ 51, 52 (1976).

17 d. § 53.

18 Id. The Safety Appliance Act, 45 U.S.C. §§ 1-43 is such a statute.

19 45 U.S.C. § 54 (1976).

20 In Rogers v. Missouri Pacific Ry., 352 U.S. 500 (1957), the Supreme Court held that under the FELA the test of a jury case is whether the proof reasonably justifies the conclusion that the employer's negligence played any part, even the slightest, in causing the injury. Justice Brennan, in his opinion for the Court, stressed the necessity for adequate legal remedy for the social problems resulting from common law standards for recovery for injury in the railroad industry:

The [FELA] was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer's negligence. The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death [that] is the subject of the suit.

Id. at 507-08 (footnotes omitted).

21 See Quarterly Progress Report 11A: Report of the Ambulatory Care Project, Lexington, Mass., Lincoln Laboratory, Mit And Beth Israel Hospital, 1974.

22 Nachemson, The Lumbar Spine, An Orthopedic Challenge, 1 Spine 59, 61 (1978).CrossRefGoogle Scholar

23 Rowe, Epidemiology of Low Back Injuries, in Summary Report and Proceedings, supra note 3, at 85, 87-88.

24 Nachemson, supra note 22, at 61.

25 Id.

26 Rowe, Low Bach Pain in Industry: A Position Paper, 11 J. Occupational Med. 161, 161 (1969).CrossRefGoogle Scholar

27 Summary Report and Proceedings, supra note 3, at 111-12 (remarks of Max Rogers). 28Id. at 111-14 (remarks of Max Rogers).

29 Ford, Orthopedic Considerations, in Summary Report and Proceedings, supra note 3, at 33, 39-40.

30 Connors, Summary, in Summary Report and Proceedings, supra note 3 (remarks attributed to Joseph Gitlin of the U.S. Bureau of Radiological Health).

31 Id.

32 Id.

33 See Bross, & Natarajan, Leukemia from Low-level Radiation: Identification of Susceptible Children, 287 New England J. Med. 107 (1972).CrossRefGoogle Scholar

34 Connors, supra note 30 (remarks attributed to Lorin Kerr of the United Mine Workers).

35 John Schwartzmann, an orthopedic surgeon in Tucson, Arizona, notes that there is a

considerable problem for the individual… refused work on the basis of an x-ray. He is pretty much put into the situation of not being able to get a job in many areas of Arizona … [O]nce refused on a back basis, the problems of getting a job are nearly insurmountable in some instances.

Quoted in Connors, Summary, in Summary Report and Proceedings, supra note 3.

36 Amandus, Statistics of Industrial Low Back Injuries, in Summary Report and Proceedings, supra note 3, at 149, 151.

37 Redfield, The Low Back X-ray as a Pre-employment Screening Tool in the Forest Products Industry, 13 J. Occupational Med. 219 (1971).Google Scholar

38 Summary Report and Proceedings, supra note 3, at 97 (remarks of John Redfield).

39 Splithoff, Lumbosacral Junction: Roentgenographic Comparison of Patients with and without Backaches, 152 J. Am. Med. ASS'N 1610 (1953).CrossRefGoogle Scholar

40 LaRocca, & Macnab, Value of Pre-employment Radiographic Assessment of the Lumbar Spine, 39 Industrial Med. & Surg. 253 (1970).Google Scholar

41 Rowe, supra note 26.

42 Torgerson, & Dotter, Comparative Roentgenographic Study of the Asymptomatic and Symptomatic Lumbar Spine, 58 A J. Bone & Joint Surg. 850 (1976).CrossRefGoogle Scholar

43 “Clinical evaluation” of a patient is based upon the information obtained by a physician from review of a history of the patient's illness and from a physical examination of the patient supplemented by routine laboratory tests.

44 Brolin, Produktkontroll av rontgenundersb'kningar av Idndryggraden, 72 Lakartidningen 1793 (1975).Google Scholar

45 Rockey, Tompkins, Wood, & Wolcott, The Usefulness of X-ray Examinations in the Evaluation of Patients with Back Pain, 7 J. Family Practice 455 (1978).Google Scholar

46 Nachemson, supra note 22, at 60.

47 This assumption is based upon the fact that the only X-ray findings consistently correlated with low-back pain are degenerative disc changes, (LaRocca & Macnab, supra note 40, at 255-56; Rowe, supra note 26, at 165), and these percentages reflect the prevalence of such findings in persons who have and have not had low-back pain. However, it must be stressed that these percentages overestimate the sensitivity and specificity of the examinations, because they ignore the fact that X-ray evidence of degenerative discs is rare under the age of 25 years, increases with advancing age, and often appears after the first bout of low-back pain. Nachemson, supra note 22, at 59-60.

48 Rowe, supra note 28, at 87-88.

49 Id. at 88.

50 Id. at 87.

51 Using the example in Table 2, and assuming 1,400 annual lost workdays per 1,000 unscreened employees (see note 24 supra and accompanying text), one could estimate that a low-back X-ray examination screening program would save about 327 lost workdays per 1,000 employees.

52 Rowe, supra note 23, at 87.

53 See note 27 supra and accompanying text.

54 Summary Report and Proceedings, supra note 3, at 113 (remarks of Max Rogers).

55 See notes 34 & 35 supra and accompanying text.

56 See notes 32 & 33 supra and accompanying text.

57 Legislation has been enacted in the State of Washington that enables the Department of Labor and Industries to adopt rules under which the premiums or assessments that employers pay into the state-administered medical aid fund could be reduced or eliminated for subsequent employers of previously injured workers. Wash. Rev. Code § 51.16.120(3). This approach to rehabilitation in the context of workers’ compensation protection could be adopted under the FELA. Furthermore, a similar program could be developed to provide a financial incentive for employers to hire handicapped workers or those perceived as handicapped.

58 29 U.S.C. 701-796i (West 1976).

59 41 C.F.R. 60-741.54 (1978).

60 41 C.F.R. 60-741.2 (1978) states that this statute covers contracts for services as well as contracts for supplies. Specifically included in the services category are transportation contracts.

61 41 C.F.R. 60-741.1 (1978).

62 41 C.F.R. 60-741.7(b), (c) (1978) prohibit recipients of HEW financial assistance from conducting pre-employment physical examinations of handicapped persons except for purposes of affirmative action in connection with remedial action obligations or affirmative action plans. These provisions seem to presage a trend toward limiting the use of pre-employment screening for persons with a known handicap. Although the provisions are not directly applicable to persons who are regarded as handicapped following pre-employment screening, they are evidence of an awareness by the federal government that medical examinations are subject to misuse.

63 For an example of an alternative federal cause of action, see Smith v. Olin Chem. Corp., 15 F.E.P. Cases 290 (5th Cir. 1977), which couples medical disability questions with a race discrimination challenge under Title VII. This opinion also is an example of judicial reliance on outdated medical studies and judicial notice taken of medical assumptions that perpetuate misclassification of individuals as handicapped.

64 Regulations providing administrative complaint procedures appear at 45 C.F.R. § 84.1-84.47. These regulations were promulgated by HEW pursuant to Exec. Order 11914, 41 Fed. Reg. 17871 (1976). 41 C.F.R. 60-741, Subpart B. The U.S. District Court for the Eastern District of New York has stated that a private civil cause of action for injunctive relief under the Rehabilitation Act of 1973 may be maintained without prior resort to administrative proceedings. Whitaker v. Board of Higher Education of the City of New York, 461 F. Supp. 99 (1978).

65 A private civil cause of action for injunctive relief was first articulated by the Seventh Circuit in Lloyd v. Regional Transportation Auth., 548 F.2d 1277 (1977). In this case, the court analyzed section 504 against the standards laid down by the Supreme Court in Cort v. Ash, 422 U.S. 66 (1975). As cited in Whitaker at page 107, every circuit that has since considered the question has sustained the existence of the private cause of action under this section of the Act.

66 See Alaska Stat. § 18.80.220(a)(l) (Cum. Supp. 1979); Cal. Lab. Code §§ 1413.1, 1420, 1432.5 (West Cum. Supp. 1979); Conn. Gen. Stat. §§ 1-lf, 31-126 (West 1979); District of Columbia, Regulation No. 73-22 (Nov. 11, 1973); FI,A. Const, art. 1, § 2 (1968, amended 1974); Fu. Stat. Ann. § 413.08(3) (West Cum. Supp. 1979); Hawaii Rev. Stat. §§ 378-1(7), -2, -9 (1968 & Supp. 1975); ILI. Ann. Stat. ch. 38, §§ 65-22, -23 (Smith-Hurd 1977); Ind. Code Ann. §§ 22-9-1-q (1), (Burns Cum. Supp. 1979); Iowa Code Ann. §§ 601A.2(ll), 6(1) (West 1975); Kan. Stat. Ann. §§ 44-1002(j), -1009(a)(l) (Cum. Supp. 1975); KY. Rev. Stat. §§ 207.130(2), -.150(1) (1977); Me. Rev. Stat. Ann. tit. 5, §§ 4553.7-A, 4572 (West 1979); Md. Ann. Code art. 49B, §§ 15(g) 16 (1957); Mass. Ann. Laws ch. 149, § 24K (Michie/Law Co-op 1976); Mich. Stat. Ann. §§ 3.550(103)(b), (202) (Callaghan 1978); Minn. Stat. Ann. §§ 363.01, subd. 25..03, subd. 1(2) (West Cum. Supp. 1979); Miss. Code Ann. § 43-6-15 (Law Co-op Cum. Supp. 1978); Mont. Rev. Codes Ann. §§ 64-304, 64-305(10), (13), -306(1), -307(1) (Allen Smith Cum. Supp. 1977); Neb. Rev. Stat. §§ 48-1102(8), -1104, -1108(1) (1978); Nev. Rev. Stat. §§ 613.330, .350(1), (2) (1975); N. H. Rev. Stat. Ann. §§ 354 A:3(13), A:8 (Supp. 1977); N.J. Stat. Ann. §§ 10:5-4.1, -5(q) (West 1976); N.M. Stat. Ann. §§ 4-33-2(K), -7 (1974); N.Y. Exec. Law §§ 292(4), 296(1) (McKinney Cum. Supp. 1975-76); N.Y.C. Ad. Code ch. 1, §§ Bl-7.0 (3a)(c), -7.1 (Cum. Supp. 1978-79); N.C. Gen. Stat. § 128-15.3 (Cum. Supp. 1977); Ohio Rev. Code Ann. tit. 41, §§ 4112.01(M), -.02(A) (Page Supp. 1978); Or. Rev. Stat. §§ 659.400, -.425 (1975); PA. Stat. Ann. tit. 43, §§ 954(p), 955 (Purdon Cum. Supp. 1979-1980); R.I. Gen. Laws §§ 28-5-6(H), -7 (Supp. 1977); Tenn. Code Ann. § 8-4131 (Supp. 1978); Tex. Rev. CIV. Stat. Ann., art. 4419e, §§ 2(a)(4), 3(f) (Vernon 1976); Vt. Stat. Ann. tit. 21, § 498 (Repl. vol. 1978); Va. Code § 40.1-28.7 (Repl. vol. 1976); Wash. Rev. Code tit. 49, ch. 49.60.010, -030(a) -.180(1978 pocket part); W. Va. Code § 5-11-9 (Repl. vol. 1979); Wis. Stat. Ann. §§ 111.32(5)(a), (f) (West 1974 & Cum. Supp. 1979-80).

67 Wash. Rev. Code Ann. § 49.60.

68 Id. § 49.60.180 defines “unfair practice.“

69 Barnes v. Washington Natural Gas Co., 22 Wash. App. 576 (1979).

70 Id. at 581-82.