arose from the lewis litigation where the louis louis versus city of chicago where a class of people was designated that the fire department had to hire and the process was as follows first of all it began with six thousand people who were in the class then they were screened by both two method one was a lottery to get one hundred eleven people and the second method was a drug screen physical test and all that now shaun roberts and stephen hill had fairly high lottery numbers once you take into account that a lot of people with lottery  two he must have been even better he must be where we near the top so that's the way the process started in the last step was a medical screening now the way them this was conducted we think violated both of their rights with respect to disability and this is the reason the last step was a medical screening but it was a medical school first of all january fifth they were both told you know you're out you're good except conditional offer employment except for the medical screening not until over six weeks later february twenty second and they get a notice saying come for your tests or come for your medical screening one of them does the screening on the twenty fourth one of them does this ring on the twenty seventh this is a very very close in time to when the first class is due to be higher which is march sixteenth week later day about a week later both in the air we've got some issues there's some things you've got to take care of so again this is within a week or two weeks of the call of the first class being higher with respect to sean roberts it's some of your pulmonary test up to review redone we have to get something more because we think there's a prime chis involved with respect to ste help they said there were some numbers that had to be repeated on a blood test and he wasn't clear and we don't have information with that was but he did repeat them the other requests where we think unreasonable given the period of time he was asked to get medical records for a hernia that occurred twenty five years before for gall stones and some other things they were given extremely short time frames to complete these requests now i should say with respect to the upshot was the trauma roberts will never invited to either of the training classes for steven hill he was told although he was one day late on getting his last piece of paper he got it on the the day after the first train quest started he was told according to complain that listen you're still good we still got places for you just get it done and he did he was one day late getting that last piece of paper there was another training class a second training class about b b n i believe on the twenty fifth but for some unknown reason by the complaint by what we think the testimon would be if we ever got to trial not until april second does the employer come back and say oh by the way you're medically qualified you're fine but too bad the training process is started so the question is is this entire sequence of events does this state a claim for discrimination under disability act let me deal with what the appellate he's arguments are i think in order one argument i think they have is that we have to show but for causation and frankly we agree and i don't think it matters i think it's academic dispute as to whether the recent changes  but for causation clearly the but for causation is clear if they had not had these either medical conditions or at least medical decisions perceived by the employer to be possible disability they would have sailed through they were way up there they were they had passed all the tests and their lottery numbers placed them well within the hundred eleven they would have had no problem so it's just it did both your clients ultimately get the medical approval into our sean roberts did not in fact at the middle who are poor that's not a complaint although we went to trial we would dispute as to whether that was reasonable but stephen hill according to the complaint and according to the truth did i mean he received a letter on april second saying you're fine your medically cleared you have you have no problems so in terms of i think the the argument of the defendants as far as i can understand it is in a couple parts one i think i've dealt with but for causation the second part is basically that there is no intentional discrimination because after all it was a rush process they had to comply with a court order people with disabilities may have gotten the shaft but who cares it's that that's just the way it happened i don't think that argument is consistent with the with the act and there is also intentional conduct because shawn roberts and stephen hill are not requesting these additional tests they're not saying by the way where disable stephen hill in particular says i'm i'm i'm doing great i have asthma but i run marathons and these injuries are all a medically qualified because but because it leaves the employer perceives him to have a disability which is sufficient under the act he is subject to these additional tests and these additional requirements which no human person could reasonably accomplish within that period of time and then without explanation he's denied a position in the second training class even though he's medically qualified so we think those facts state claim well there's a there's a let's step in your logic that that i'm not sure i am fully persuaded that is that medical testing itself does not violate we can leap to the conclusion that they're perceived as having a disability just because they were required to undergo some medical testing and it took some time to get the results back well as ultimately it seems to me they didn't perceive mr hill as having a disability at all ultimately but two way and they initially did because they required her their testing i mean the first medical screening was something presumably everyone went through i guess that's a step that i'm not quite so good on the first the first the first level of medical testing  something everyone went through and we do not not deny the employer has a right predicament this institute of medical testing do you think that people timing in the structure of it waiting till january fifth till february twenty second to inform big need to go the doctor when the class was going to be hired in march sixteenth would by its nature disadvantaged people who have conditions which might need further investigation which apparently was the case of these two so that's number one number two it's true that the act does provide specifically that employer has a right to do medical testing it doesn't have to give a business justification i think the reason for that if you look at the whole context of the  the congress wanted to encourage employers to be kind of medically active you know to if they thought there was a problem with employee of some sort to get medical testing to make sure that everything everything was so culture however in this particular i don't believe that that means that any medical testing of any sort imposed on a person with a disability under the act is necessarily reasonable i mean let's say for example there is an employee already hired and the employer said well you have a condition get a cat scan every day i think there were at least be a question under the act of or that was a reasonable  requirement as to medical as to a medical intervention in this particular case it's the requirement of doing this very fast examination and inquiry in combination with the deadline and yelling into the class first to deploy and putting them through the last up in the process then the further requests which we think violates the act and least requires that this case go further on  ahead i was just going to ask isn't the desperate rush though imposed by the courts i mean this is not clearly not of her typical case of discrimination they were in a desperate rush because they had this court order to get these people hired and get them on the job so just some plausibility idea that they weren't discriminating they were just trying to comply with a court order and it was a mad dash well i was going to say that the situation is is unique but i don't think the fact that the situation is unique excludes it from the application of the requirements on disability there are factual questions why did why did the gap from january fifth to february twenty second for example which disadvantage my client example requiring him to get in a case where he says you know i had a hernia twenty five years before they say ok you have five days to get twenty five year old medical records not reasonable he's not reasonable whatsoever in our view so it's the time constraints and not the idea of seeking additional medical information correct correct i think it's it's the it's the time constraints there and there were options available they could have gone back to the court and said we needed we needed to you know we need to extend this or whatever or they could have organized themselves better so for example on january fifth when these two people had gone through the stages they could have said yeah you know get it go go for a doctor next week not waiting six weeks a by the way the i think the defense mentions their idea that maybe it had something to do with this a rolling process or an order in which the higher the lower number of people to use the right terminology were getting melt the screening first but that's not in the record and that's not in the complaint and i'm not so sure that's true in any event that would be a question for further proceedings not this one who is in ministeri can yes you can find if you can find a point where another and i'd also say that mike mike since it was a class action my clients were in the position of being you know you know had they had no independent voice and some of these issues they were decided by the the class representatives well i guess though on the question the medical exam a it it's hard to think of a position with the city that would where the most demanding tests would be needed would be in the area this this type of plan would you agree i would absolutely agree but i think it is a tragedy that for example steven health a man who could run marathons and was not able and will never be able because of the timing intentional discrimination by the suits against them on the on the basis of their disabilities or disparate impact with respect to intentional discrimination all that the plaintiffs plead at the most is a medical conditions that took them longer to provide you know those documents because they had medical conditions and actually by that time the city didn't know whether those medical conditions were disability or not it took them longer but all we have constitute discrimination because of the disability now with respect and there are other factual allegations in the plan just complain that negate an insurance of subjective discriminatory i fortunately places by the time did not complete the full step and so she had to jump over to the next person in the rank what are those with your position that because the court order mandated this procedure even if it happened to has to undertake the follow up medical examination your chances of getting hired are almost nil regardless of what the results are everybody was  there's a perfectly healthy candidate would sail through and the test would be done right away but if i were a person with asthma say there would have to be follow up to get out pulmonary release and the fact that that additional effort would take some additional time dramatically decreases my chance of getting hired well in that's legal under the a d a s it is absolutely legal to ask a person for additional medical information based on the houston resel i i don't think i don't think i have much to add i would say that we would not concede that the consent order or whether the consent order could have been modified or how could modify it is an issue