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Interviewer discovery of injury through checking references decided to pass on hiring me?

Chatsworth, CA |

I interviewed back in may with a Materials Engineering company in Malibu for a process technician.
I did not disclose my medical history for leaving my previous employer, when interview showed interest on coming on board verified my references . My previous co-worker disclosed my work related injury triggering interviewer pass on hiring me. My previous injury in no way interfered with work responsibilities to be preformed for potential employer. Interviewer showed interest in hiring me until discovery of my injury. Where do I stand?

Attorney Answers 5


  1. If you can prove that the reason you were not hired was the prior work injury, then you have a case for disability discrimination. Of course, proving that was it and not the panoply of reasons the employer will give for not hiring you will be the challenge. Showing interest and deciding to hire are two entirely different things.

    If you think you can prove (i.e., more than mere conjecture) that you were not hired for the unlawful reason, it would be prudent for you to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.


  2. An employer can decide not to hire you for many reasons. Some reasons such as discrimination based upon disability or medical condition may be illegal. In order to decide whether to pursue such a claim you should promptly speak with a knowledgeable employment lawyer, who can help you decide if there may be sufficient proof of illegal discrimination. Please note that if you wish to pursue a statutory discrimination claim under California law, you need to file an administrative complaint with the Department of Fair Employment and Housing within 1 year from the discriminatory act.


  3. How was your potential new employer able to speak with your previous co-worker?

    Supervisors and managerial employees who are well-trained usually know better than to disclose medical history when being asked to verify your employment. If your previous co-worker is part of the HR department then they would also be trained not to disclose medical history.

    If you listed your previous co-worker as a personal reference then you might want to reconsider using them in the future. Federal HIPAA law is very clear about non-disclosure of any type of medical information to anyone without express authorization to do so.

    You should contact an employment lawyer about this job as well as how to proceed with potential future employers. Some employers continue to ask impermissible health or injury-related questions during many phases of the application process and a well-versed employment lawyer can provide you with valuable information. Good luck.


  4. You have the burden to prove the reason you were not hired was because of a disability. If you can prove this then there is something you may be able to do. You need to get a statement from your previous co-worker explaining you were not hired because of your disability.

    Best of luck.


  5. How would you prove that the potential employer passed on you because of the medical info? The potential employer's personnel record will state another reason(s).

    Did the former co-worker volunteer this info, or was that person asked specifically about the issue? How many people were still in the running for the job when the interviewer passed on you? How do the qualifications and credentials of the person who got the job compare to you?

    Don't be too angry with your former co-worker. If you filed a work comp claim for the work-related injury, the fact of the claim and the injury was available if any potential employer was motivated to find it.

    No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. Send me an email to schedule a paid Consultation for that kind of information, direction, and assistance. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.

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