BNSF violated the ADA by requiring a job applicant whom it suspected of having a back impairment to submit an MRI scan of his back at his own expense (which he couldn’t afford) as a precondition to employment. In requesting an MRI because of Holt’s prior back issues and conditioning his job offer on the completion of the MRI at his own cost, BNSF assumed that Holt had a “back condition” that disqualified him from the job unless Holt could disprove that proposition. In doing so, BNSF treated the applicant as if he were disabled, which is sufficient to make the ADA applicable. While an employer could require a disabled applicant to submit to additional testing paid for by the employer or to pay for tests that all applicants, whether or not disabled, were required to pay for and provide, an employer cannot require only the disabled to pay for additional expensive tests.
Ninth Circuit Court of Appeals (Gould, J.); August 29, 2018 (amended September 12, 2018); 2018 U.S. App. LEXIS 25852