and in denying the n s f motion for summary judgment there are three independent grounds we laid out in our brief as to why the district court erred i plan to focus on the third of those today absent questions on the others and that ground is that the a on its face permits the conduct for which the district court found the n s f liable specifically the idea expressly allows employers to require at the post offer phase medical examinations of applicants and to condition those conditional offers on the results of those medical examinations the district court erred and in refusing to follow that principle in a number of ways and i want to talk about some of these and they're all laid out in the bri the district court said it at the outset that the process is that when an employer makes a conditional offer the offer is your revokable unless for reasons that are job related and consistent with business necessity we know that that cannot be the case because the case law including this court's decisions including judge fisher s opinion for the court in the lino case state that an employer can withhold or revoke an offer in the instance where an applicant has lied about a health or it's at least implied in the same case that if an applicant once it gets to that third stage refuses to disclose information about a medical condition and those are situations that would not be within the or standing of job related and consistent with business acidy so that in itself shows that the year revoke ability principle that the district court adopted as the linchpin for its rationale is incorrect second overarching problem is that the court threw out the the reasoning treated as a second overarching issue is that the district court treated asking questions about and conduct regarding an applicant's medical condition has facial discrimination in the same way as if it were an employer had asked questions are engaged in conduct concerning grace or national origin or sex but those things are fundamentally different if an employer ask questions or imposes a requirement on an applicant because that applicant is female or because of that applicants race the employer says you go get an m r i because of your race or you go get an m r i or do something else because of your because you're female of course that's facial discrimination and the district court erred by equating those two and not recognizing the fundamental differences between the title seven and other discrimination statutes and the a d f a and that difference is that the a at the right phase allows and in some instances even requires that an employer think about study consider and act on an him an applicant award employee's medical condition the statute in the provision that i spoke about at the beginning that permits employers to require medical examinations allows employers to look at medical conditions to think about them to think about how they will affect the workplace in a case in this is not this case but in a case that involves a reasonable accommodation issue and employers require to look at medical conditions so it cannot be the case that doing those things has we thought that at the beginning your honor but the district court made it absolutely clear that was not her concern we had a phone conference after her initial ruling and she very bluntly told both parties you all are focusing on this cost issue that was not the basis for my ruling it's not about cost the basis for my ruling was that the n s a if indeed the process when he didn't get the information it's not about who has to pay it's that i'm holding that the n s a it has to continue the process i think we do have a lot you'd be here today if it be in if you had paid for the for the m r e well i don't know because i don't know what the decision would have been made well i mean he was unable he well my argument is and yet we thought it was about cost to begin with in the district or corrected us on it and said no it's not and so i'm going on the rationale the district court told us that let me be in this perceive him to have a disability no no they didn't know he had it and this is one of those other two grounds that we've laid out in the briefs but you know we looked at someone who came in and said look i have a had a bulging disk four years ago it's completely resolved and the stage qualifications he met the requirements to get an offer sure but they never made a determination on the second stage which is whether he had the physical i mean ability to condition conditional for that's right that's right and that's what kicked it into that process that allows the how with what would he have to do to satisfy the condition he had to comply with the requirements to obtain the medical exam that that be instance that in the parties agree that includes it's not just one exam that includes any medically related follow up inquiries or follow up medical testing that the employer require so in this instance that's what it involved was the follow up request once he provided the initial information about his back he had to go and get the m r i and provide some records related to his back it's one thing to graham to get records related back quite another thing to say you  that i'm going to make sure i understand what he had to do he had to go get an m r i and and frankly he was not being forthright with his own doctor and if he had been his insurance probably would have paid for it because the same day he went in to see his doctor to get a letter to and to be n s f he went to see his chiropractor as he had been doing on a routine basis for the very reason of back pain but he wasn't telling his primary doctor about the back pain was telling his doctor he didn't have any back pain which is why his doctor sent being as a letter saying an be difficult to focus just on his individual case alone in thinking about this for me so i'm asking myself what are the implications of having a rule where an important employer like your client and put the burden on individual to get expensive tests because it could be if that's true that that would disqualify a lot of applicants based on financial inability to pay an overgrowth of whether he really could have applicant when they get to the post offer stage in the employers and is able to require medical exam that it would be unless the employer takes that on itself requiring includes the requirement that the the applicant pay for the test if that's what the employer says i'm required to keep my law license to and that requires me to pay and will do so unless i have an arrangement with my employer that that requirement that i maintain my license takes with it the rip the requirement that i pay for that law license every year now the concern that i think some have is that an employer might intentionally use that ability as a way to knock out people who report medical conditions that they're concerned about and they don't want to dig in and really find out that's a theory that could be pursued just on a straight pretext disparate treatment claim that the basis for asking for the information was discriminatory that's not and she said initially she thought that's what the case is about right and then she said no no no no no we're not going to treat this is a disparate impact case that that's what i made a mistake so we're going to do this is the disparate treatment case that's right but then she put the word discrimination in quotes because she and she referred to facial discrimination which is what she characterized the action based on withdrawing the offer before the end of the process which is what she told us had been the basis of her ruling and that's that first principle that i was talking about i think it's to whether the discriminatory treatment the treatment aspect the evers adverse  impact issue the adverse action well that was what she characterized as the just as the disparate treatment as well as the discrimination you know she she didn't say we were not withdrawing the  offer well withdrawing it before the end of the process was automatic discrimination under the statute automatic disparate treatment discrimination was what she said and the basis was because she and in both this principle that said you cannot withdraw all the offer before the process is completed and that's the principle and that at the beginning i was saying is as a matter of all wrong and frankly has actually drawn from disparate impact cases and the judge just mistakenly failed to recognize that if there are no other questions at this time i'd like to reserve the remainder of my time that's why i'm pleased to  by addressing something from the earlier argument my colleague mr ramshaw was asked whether he this court how much deference the ninth circuit owed the e e o c and he said we were not asking for deference in the with respect to the regulations on obesity and but not that it's not warranted and as we point out on page twenty six footnote six of our pref chevron and our deference is warranted to the e e o c these guidance and the positions taken in litigation because congress has expressly authorized us to probably get regulations in our guidance explaining those regulations are warrant deference by this court the case mister neal was talking about the case is not about cost and you have to look at the district court's statements on this issue holistic the the crux of this case is that an employer cannot stop the process for hiring an applicant midstream because it asked for an additional test that the individual cannot afford and i want to make it clear that the e e o c specific throughout is employers can ask for more information but if you look at the e e o c has guidance in every opportunity we've had to speak on this topic we have made it clear that the employer is responsible for paying for any examinations that it requires and that you see that in our technical assistance manual you see that in our pre employment  medical examination guidance and in our guidance of respecting what employees what employers can do with respect employees after the fact now the n s f wants to argue that the facts are in dispute here but none of the facts that being assessed points to are either in dispute or material to this case mr hope may have been confused about who he spoke to when he called missed his doctor's office about the m r i but he was accurate about the response and that is that the doctor's office would not authorize an m r i when he was not in pain and missed and dr hecht confirmed that in his deposition unicef argues that he could have gotten the m r i if he had been honest about being in pain but he wasn't not the kind of pain that warrants an m r i which dr gerard said is significant pain he was seeing his chiropractor for maintenance  and the he his deposition at excerpts of record three eighty to make it clear that it was maintenance visits that prompted his ongoing chiropractor visits and the chiropractor described the treatment as conservative treatment involving chiropractic adjustment and massage and most of the records in the latter part of two thousand and ten and twenty eleven from a chiropractor indicate that he was describing improvement  in his condition or the same i e he was still improved so the n s f is incorrect that there was that mr holt was not acknowledging pain that he was experiencing that would have warranted an m so what would it what do you understand the district court's holding to be the district court held that an employer must complete the application process once it begins the individual has to be cooperative with that process as mr holt was here if the employer wants more information it can have it but it has to pay for it if it chooses not to pay for additional information it must make a decision based on what it has so so she concluded that that was a violation of the ag a because resulted in discrimination against a person with a disability the discrimination here yes the generic nondiscrimination in one two one one two way says employers can't discriminate on the basis of disability in hiring and mr holt was not hired because of his disability here  says that it had no results to evaluate that it it didn't fail to hire him because of his disability but because it didn't have results if another statute does seem to contemplated that employers we needed necessary medical information to evaluate him to satisfy the condition that we identified that is correct and what the what the eighty eight requires is that an employer can set up any type of post off for pre employment medical exam it wants as long as everybody gets the same initial exam and what that happened here mr holt showed up for the be an s f exam at the initial medical questionnaire he did he self disclosed his prior back condition and b n s f provider of their choice c h s asked him to obtain medical records which mr holt did and he submitted those at the end september a week later he participated cooperatively with the physical exam that be in s f a stablished and that is the employer's praga have to set up the exam the contract doctor for be an s f doctor hickson administered the standard police officer medical exam she administered a separate medical exam to look at his back to because he had disclosed a back injury and he underwent the standard eye so kinetic exam that every applicant for a police officer must undergo he passed that with a ninety five percent of something that's designed to assess the strength he passed the lumbar exam that dr hixon administered and she said she found no abnormalities no reason for limitations she completed a four page summary on b n s f's own medical examination report which you can find at excerpts of record thirteen ninety seven to fourteen hundred a four page report of what she said on page two she found no abnormalities on page three that in her opinion the candidate is not likely to develop any physical symptoms or limitations that could impair his performance within the next two years and on page four it in her opinion the candidate was not likely to pose a risk to the health and safety of self or others within the next two years and finally no limitations or restrictions needed now that they be n s f had dr hixon report its own contract dr b n s f also had the report from dr from holt's own treating physician who examined him when he went in september to get a statement and found no current pain limitations or abnormalities in his back in effect had the report from holtz chiropractor saying that he had been seeing him for conservative treatment and had found no need for any light duty or limitations for the prior two years because of his back and be in s f had it's holt's own statement that in the four years since his back injury he had been performing a job of comparable rigorousness without any need for taking leave or light duty because of his back or suggested with memore that would be dr gerard so with with all of these five sources of information showing that holt could do the job c h s the the contract coordinator for medical exams sent the information to dr gerard in texas who makes these decisions generally for being s f and he determined that more information was needed he requested an m r i and mr holt tried mightily to obtain that but as the record indicates he was unable to get his doctor to approve it  he did some research on what it would cost out of pocket and came up with a cost between two thousand and twenty five hundred and he asked begged that they condition be removed and he had the answer was no  say the statute does not address cost per se and you reach the result of the district court reached by looking first at the generic nondiscrimination provision in subsection a and then subsection  medical examinations is another aspect of discrimination if an employee does not do medical exams in consistent with the scheme set out here by the by congress and subsection d c three says that employer can give the medical examination after it makes the conditional offer but it must use the result in accordance with the subchapter and so that is it can give an exam and individuals must comply but if it doesn't hire the individual then it would need to be able to point to something in the a da that gives it that opportunity to reject the individual the for instance if the medical exam shows that the individual cannot do the job which the as i pointed out the examination here shows exactly the opposite if the medical exam showed that the individual would be a danger to themselves or others that would be another reason that the a d a s allows an employer to reject an applicant and i think judge pay as you might have asked earlier what would have happened here if the if mr holt was able to obtain the m r i or be in s f had paid for the m r i if they still didn't hire him then the question would be is that a that would be exactly the situation we'd be in but of course effectively they didn't hire him on the grounds that they needed more information and that is not one of the provisions that the a da permits an employer to walk away constructed that it's the employer that gives right requires the medical examinations now if a particular employer set up a post offer pre employment medical exam requiring every applicant who was offered a job  go get their own doctor to certify their medical qualification across the board everyone and that entailed some cost to the applicants the prospective employees the a d l if there were some employers do with respect to drug  not sure if that's true or not but if it was it would be consistent with the idea because it would be across the board required of everyone in this but many employers as did be n s f would rather have their own doctor examine the individual because they want to be able to trust and that's clear from the e e o c technical assistance manual from the guidance on pre employment medical inquiries and from the by implication the guidance that we've provided employers on employee a medical exams although not completely doesn't require it doesn't apply to the same situation it still indicates that the employer has to pay so there's one last issue that they raise which was the district court granted in junction yes and they challenge that there was no need for an injunction here this is just the once one off situation well of course it's not a one off situation as they admit and that was the primary basis for the district court's grant of an injunction is that being s f in its briefing below had said that this isn't standard procedure nationwide and that and so the injunction is a moderate response something like if somebody acts wrongly it's not shown they're going to correct it if it's appropriate to do or injunction but how can you do a nationwide injunction without going through the of analysis of the four factors that are set out in the winter case when the goods and seed bases an injunction on equitable considerations under title seven this court and other circuits have long look to see whether the injunction is needed to remedy the discrimination and is it as broad but only as broad as needed to to accomplish that purpose so we think that the standards that courts have long applied remain the proper equitable considerations but to the extent this court disagrees and would and believes that the  forepart considerations found in the supreme court's e bay and monsanto decisions apply they are readily satisfied here if you look at the first two factors existence of a reparable injury and adequacy of legal remedies clearly when individuals do not get a job even if they realize they were subject to discrimination come to the e e o c and years later get some monetary relief it doesn't fully remedy the cost to those individuals from losing out on the job that they should have had at the outset and furthermore the e e o c is the plaintiff here our mission that congress gave us to enforce the law is seriously undermined if we are not able to eliminate the discriminatory practice from the workplace and only can years later try to get money really for those individuals we haven't to learn about i can understand that but i guess what i'm asking is did the district court in pacman rationale discuss not only irreparable injury but also the public interest in the balance of hardships  i'm not sure whether that should make a difference but i think the factors certainly in the plymouth area injunction there is more of a burden on the plaintiff to demonstrate why a check and alteration should happen before a final judgment and here there's been a determination of liability in the e e o c is amended complaint the primary reason we brought this was to eliminate discrimination from being a subset workplace and only secondarily to get relief from mr holt we think  to two minutes to mr nails or about all the time because he wants it you don't have to use it out but i think a couple of us are interested in the injunction issues ok  i will get to that i wanted to try to hit three quick points and then and then get to the junction if i may on the is understanding yes he's rationale about the cost it's saying that because the issue here was a follow up exam after the initial exams which we all agree is permissible under the statute they're saying that the costs are required to be borne by the employer if that is true then why wouldn't just asking for the information at that stage also be discrimination it's also based on the medical condition and that's the medical condition is the reason we're asking for it so what about the cost makes that different the legal theory would seem court counsel when does talk about the cause and or summer judgment and i'll say two things about that statute expressly allows the employer to require the exam requiring the exam doesn't say you can require it only if you pay for  it allows us to require the exam and that carries with it the ability to impose those costs if that's what is needed that's the part of it's a fundamental feature of the statute employers were not relinquished of that right when the act a on the failure to work you were the justification is the failure of the condition we are allowed to condition the offer on the results of the medical examination when mr holt did not provide the medical examination or comply with the the requirement that condition failed that's the reason that the process can be terminated because it was never completed now the e e o c says oh well you had enough you had enough that's results no we didn't have results we had information and i'll note the statute distinguishes between information and results when you look at it results are the completed final process information is what you get along the way and the statute uses both terms we did not have results because the information the final exam was not provided because mr holton not provide it and  finally the other point that i wanted to make is he as he talks about this case as though they're defending a jury verdict in their favor this was a summary judgment granted against b n s f all of those facts that you heard about the need for the m about being approved by the other doctor and a number of other issues are things that were hotly disputed and judge packman didn't get to those because she used a different theory than what you're hearing today if you rely on those issues like he couldn't get the m r i he couldn't afford the m r i these other doctors had already approved him those were all wrapped up in factual issues because those other approval we're based on incomplete and in some cases false information that mr holt provided it and so you can't come in and say we're going to grant summary judgment against you on a matter that you do not have the burden of proof on because mr holt just says i couldn't provide the information or because he  says you had enough information that's enough we're calling it that's the results the results are in when the employer says they are him because it's the employer who has the right to get the information junction for just a few for minute yeah the the is are basically go point is the supreme court has made clear in recent cases they were not title seven arabia cases but other cases that the permanent injunction can be issued only if the traditional four equitable factors are complied with and the district judge made no effort to satisfy those requirements and they were likely to prevail if the roof rule for him on the merits well that the likely to prevail would be what you would look at for law and not look at the new case law we're talking about it i understand you know a procedural problem the judge rejected that legal argument and there was never never any attempt to show that those factors were satisfied and so we never got into a discussion travels from washington d c and seattle's a great place but it's never easy to travel so far so thank you the the court will submit the  and the court will take a brief recess for ten minutes