today i want to start please by talking about what this case is about the issue in this case is really whether an airline can ignore the statutory scheme laid out quite congress for its own convenience here american airlines violated several important legal principle in conducting what are very invasive medical screenings in in the process of hiring the flight attendants first in violation of state and federal disability laws americans fail to make a bona fide offer of employment prior to launching into these expensive and the troops of the medical evaluations where you get your car in just to sort out the part a bona fide offer of employment where any minimum requirements certainly are in the minimum requirements are laid out in the e e o c sees guidance as well as the various cases that we've cited in our briefed the minimum requirements are that all non medical information which reasonably could be evaluated prior to making the offer has been evaluated and congress laid out this scheme for an important reason people with disabilities specifically hidden disabilities this case where they brought them all to dallas and they interviewed them and then immediately shifted them off to the medical questionnaire and the blood test the two people who are in the fee ha part of the understand one of them they didn't do the background check because they relied on a prior and the other one the district court found had been completed before they made a final medical evaluation so in that process there was a conditional offer of employment you poor certain things were done but it seems that at least in one of the cases background the non medical was never done because the that the other one the district court said was accomplished within of some legitimate timeframe so in relation to judge groupers question i'm interested in how it applies to short let me take you back to circumstances let me take each of those questions separately  is the gentleman that was a prior employee that they argued first time on summary judgment that they never did a background check on their certainly question the fact as to whether that ever occurred the letter that they gave to mr fusco says we're going to do at the time to make the conditional offer say to these people the only thing that's less to do in your case it's the medical background check you're now hired by american airlines if you passed the medical check and nothing else there is evidence  record of declarations from dr william portsmouth and psychologists that works with people who are h i'd be positive and what he says and this is what congress i think intended when they said that you needed to make somebody comfortable by saying all we're going to look at is your medical now tell us about that someone with a catastrophic disease such as a charity is not likely to disclose to an employer if there is something left other then the medical background check and the reason is because everybody knows that employers can easily discriminate against somebody and hide that reason behind a background check behind we heard you were unruly on the airplane behind any multitude of reasons and congress recognized this as did the california legislature when they acted the disability protection statues and what does it actually specifically say is that you can't ask the question unless it's the only question unless that's all that's left and what clearly happened here is the american asked a question there's no dispute did your i'm not here to tell the court that american doesn't have the right to get on a stance or to medical questions from its flight attendants they do that the issues assume that the question was unlawful what should they have done what should american have done you know what should your clients have done if in fact to answer the question would have been an unlawful it was an unlawful question it might certainly are if my clients were employers or they had time to contact a lawyer the advice would have been don't answer the question right unlawful next to it in the real world people don't do that do you think the questions are unlawful aren't you taking regular medications in the context let's assume you have gotten to the point where you agree that it's ok our sense of medical public policy in this case it's can an airline for its own convenience or the convenience of that that we can simply ignore what congress is told that it must do what you do with the phrase or non medical information that reasonably it manager a flight attendant recruitment for american the person and all of american airlines who does these things and i ask for the following questions this is in the record at page six thirty and page four seventy seven i asked her quote is there any reason why american couldn't do a background check prior to doing a medical examination answer i think we could question ok there's no business reason why american didn't want to perform the medical examination after the background it's not a business reason and it just has to do with the applicant and trying to have it convenient for them and she backed off from that later in a declaration on summary judgment but at least we've got a tribal issue of fact as to whether they could have reasonably gotten this information earlier remember what we're talking about is a background check we're also talking about medical information doesn't matter what you do the background checks before they come to dallas or whether you wait and do the medical after they leave dallas and some other convenience this is an airline they can fly keep all around but more importantly if the court were really concerned about the reasonableness america had american had another out and that is simply say do you want to do your medical now or do you want to come back and do your medical that gives people like mr fusco the opportunity to go back talk with his lawyer talk with the psychologists talk with whoever you want to about what he is going to have to disclose and when he has to disclose it there's no reason they couldn't said to mr fusco or any other applicant well you have a right to have your medical check done at the end of the process do you want to exercise that right if you answered yes to that question we wouldn't be here today because what we know is that when mr f branson and mr lee now were asked to disclose by american directly they all disclosed we also know from americans medical director that there was no medical reason that these people could not be flight attendants they could i ask should i ask you to shift over to the privacy issue i can't terms of the blood test it's not disputed that the american airlines has a legitimate business interest in having a blood test and that your clients did consent to a blood test correct anyway is ok what blood test did they consent to and your argument as i understand it is they consented to a blood test what that is a c v s what did they think the blood test was for and  obligation on american to disclose the scope of the blood test sure there's two answers to that question about depending upon which plaintiff you talk to they all signed a form and title consent to drug test the words they knew that their urine in their blood was going to be taken for the purpose of drug testing they all testified that they believed that that was a typical drug test where using cocaine or marijuana or any other illicit substance mr fusco specifically asked american what are you taking my blood for one thirty five to twelve seventy and in that case the court made it very clear that limited consent with regard to very private issues to simply a very limited consent packets but no where in there did they say we're going to be doing a complete blood count and testing for any number i think there was going to expectation of privacy there asked a lot of questions about all manner of things just that th not be tested for intimate personal matters involving one south nor does consenting to giving blood or urine samples or filling out a questionnaire so what this court step in the normal bloodstock case is that because you consent in one area even with regard to blood or urine samples it's disclosed and gotten consensus take a blood test that would reveal would be a complete blood count and would be testing for rooms that are located in to the levels and then that would be ok under the because they could have had any other condition and the outcome would have been identical they could have had with us american do though by having created the situation where the issues before us and all american has clearly in the face of i think fairly clear guidance from the e e o c compressed or completed what is intended to be a two step process in the one unified process so that  to the extent there is any question in the mind of a an applicant whether he or she wants to consent or participate in something that is going to reveal very sensitive personal information that they're shooting where they have to go ahead and fill out this form subject to the medical questionnaire and go through a blood test what's the rationale for american airlines to do this other than as of difficulty well your honor the medical department is ten and a ten minute drive away from flight attendant recruitment so after convenience after applicants were given the benefit in their office of employment they were informed there'd be a medical examination when they got to the medical department they were told there would be a blood test right and they had the opportunity at that point to ask questions of the nurse two of them did not ask questions they had the opportunity to solution to this problem well they were informed when they signed their employment applications there'd be a medical examination and they were told when they were made the offer of employment that there would be a medical examination and difficulty i the medical examiner the offer before the grand jury they made the offer before the medical examination and a background check and it's our position in the district court so found that american obtained all other information it reasonably could have prior to the art wasn't it reasonably possible to do the background check i complete that step before a medical examination well your honor it was possible that would involve either applicants remaining in fort worth at their own expense for three to seven days while the background check was completed or it would involve them flying back home and returning on another occasion for a medical  not in the record so we're basically the problem i have understand americans effort to accommodate here but coming back to the concern of the statute which is to address the problem that we're confronting here which is why is it that these people have had their employment offers cancelled your position as well as a matter of fact it was done because they didn't tell the truth on the for required to disclose them until it is clear that it's up to them whether or not they want to proceed to the legitimate offer why should i as an applicant have to disclose to american airlines and their medical staff and whomever else might get their hands on something that is highly personal and controversial in this society unless i know i really do and i'm going to get that job and that's why all of non medical stuff is supposed to be completed so that if in the end of the day american decides not to give me the offer then at least i have a shot at proving it's because they discriminated against me or corella to vote in my view anyway that i took a shot at getting  we're looking at it from the structure of the law i understand which is a factual matter american may have a good and sufficient reasons that could be explicated but i don't on the record that i see quite be considered prior to a medical examination but just all information which the employer recently could have obtained and analyzed but also with respect to mr schneider some point about a test being a ruse a way to find out a person a condition or disability americans test wasn't that of the fifty four h i v positive people who were honest during the medical examination and disclose their condition forty nine of them s completed those medical examinations and of the fifty four who disclosed and this is on the record not one was disqualified because of a background check and in addition americans noticed to employ two applicants who failed to disclose flat out you failed to be honest and forthcoming during your medical examination and as a result we are the standing your offer we do not discriminate under the americans with disabilities act we make reasonable accommodation but honesty is important to us so it can hardly be characterized as a ruse when american up front advises applicants precisely the reason why they what would be unreasonable your honor would be the impact on american with respect to the competition it states during that four years in question with respect to having applicants take off yet another day of work because many applicants were already employed at the time they applied the fact that ten to twenty percent of applicants to whom american made offers of flight attendant training turned down those offers because they already had accepted a job with another airline and another twenty percent of the applicants refused or i'm sorry were no shows for americans flight attendant training classes when they'd already confirmed that were a key point is whether or not you keep your medical examination centralizes and if you could be centralized that then you wouldn't have this problem with if it were decentralized that would involve a number of things such as the purchase laboratory equipment hiring of technicians to go and i mean that records that we've that's not i commission of the record that's not on the record your honor the outcome however would have been the same had these applicants not disclosed conditions such as tuberculosis i mean the record it's undisputed on the record that american withstands withdraws its conditional a routine blood test complete blood count is a routine blood test given by gawkers and clinics and hospitals throughout the united states it's the initial screening stop it's not a chance for any blood cells and then a normal range and if the the number assigned to that individual is outside the normal range then that triggers americans medical department to write to that applicant and say indicator of anemia your honor and name if you one has to have the an oxygen carrying capacity in one's blood cells in order to be able to withstand rapid decompression if that happens which it does happen i mean we all know now that i mean we all know that flight attendants do a lot more than push a beverage cart down an aisle so if there is an emergency and there's a rapid decompression in the cabin someone with a name is much more likely to lose consciousness than someone without anemia and you don't want to flight attendant keeling over in the aisle when you need that flight attendant to administer first aid to calm frightened over one hundred medical conditions including cancer sickle cell anemia disorders of the immune system and a condition solely related to pregnancy that's at the record at page six forty five three six forty nine according to the head nurse at american airlines mission payne told you that regardless of the condition if they lied about it they wouldn't have been hired nurse june at american airlines and this is that  record various points in the record question there wasn't a blanket rule that said if anyone falsified any information then they would be automatically a non disclosure and therefore not hired this is a fifteen through eight sixteen of the record her response no she tells us that failure to provide information regarding for example that dental treatment or pap smears was not considered a non disclosure by the by the defendant that american takes us on a case by case basis and decides whether you've made a major omission of a significant condition or problem so this notion that they didn't do anything wrong because anyone would have been treated the same simply isn't true unless you have a significant condition and  protected class people with chronic conditions have the right to know what they're consenting to and to only disclose once they have been given a guaranteed by the employer that there will be  matter not that they don't have the claim finally counsel has given us many what ifs about why it might be easier for america in a more convenient records devoid of any information of what it would cost american to do the medical checks elsewhere to do the background