Appeal from the United States District Courtfor the Northern District of CaliforniaVaughn R. Walker, District Judge, PresidingArgued and SubmittedJune 10, 1997--San Francisco, CaliforniaFiled February 3, 1998Before: Stephen Reinhardt, Thomas G. Nelson, andMichael Daly Hawkins, Circuit Judges.Opinion by Judge Reinhardt
_____________________________COUNSEL William C. McNeill, III, San Francisco, California, for theplaintiffs-appellants.Douglas H. Barton, Hanson, Bridgett, Marcus, Vlahos &Rudy, San Francisco, California, for defendants-appelleesLawrence Berkeley Laboratory and The Regents of the Uni-versity of California.Sushma Soni, United States Department of Justice, Washing-ton, D.C., for defendant-appellee Federico Pena.
_____________________________OPINION REINHARDT, Circuit Judge:This appeal involves the question whether a clerical oradministrative worker who undergoes a general employeehealth examination may, without his knowledge, be tested forhighly private and sensitive medical and genetic informationsuch as syphilis, sickle cell trait, and pregnancy.Lawrence Berkeley Laboratory is a research institutionjointly operated by state and federal agencies. Plaintiffs-appellants, present and former employees of Lawrence, allegethat in the course of their mandatory employment entranceexaminations and on subsequent occasions, Lawrence, with-out their knowledge or consent, tested their blood and urinefor intimate medical conditions -- namely, syphilis, sicklecell trait, and pregnancy. Their complaint asserts that this test-ing violated Title VII of the Civil Rights Act of 1964, theAmericans with Disabilities Act (ADA), and their right to pri-vacy as guaranteed by both the United States and State of Cal-ifornia Constitutions. The district court granted thedefendants-appellees' motions for dismissal, judgment on thepleadings, and summary judgment on all of plaintiffs-appellants' claims. We affirm as to the ADA claims, butreverse as to the Title VII and state and federal privacyclaims.BACKGROUNDPlaintiffs Marya S. Norman-Bloodsaw, Eulalio R. Fuentes,Vertis B. Ellis, Mark E. Covington, John D. Randolph, Adri-enne L. Garcia, and Brendolyn B. Smith are current and for-mer administrative and clerical employees of defendantLawrence Berkeley Laboratory ("Lawrence"), a researchfacility operated by the appellee Regents of the University ofCalifornia pursuant to a contract with the United StatesDepartment of Energy (the Department). Defendant CharlesV. Shank is the director of Lawrence, and defendants HenryH. Stauffer, Lisa Snow, T.F. Budinger, and William G. Don-ald, Jr., are all current or former physicians in its medicaldepartment. The named defendants are sued in both their offi-cial and individual capacities.1The Department requires federal contractors such as Law-rence to establish an occupational medical program. Since1981, it has required its contractors to perform "preplacementexaminations" of employees as part of this program, and until1995, it also required its contractors to offer their employeesthe option of subsequent "periodic health examinations." Themandatory preplacement examination occurs after the offer ofemployment but prior to the assumption of job duties. TheDepartment actively oversees Lawrence's occupational healthprogram, and, prior to 1992, specifically required syphilistesting as part of the preplacement examination.With the exception of Ellis, who was hired in 1968 andunderwent an examination after beginning employment, eachof the plaintiffs received written offers of employmentexpressly conditioned upon a "medical examination,""medical approval," or "health evaluation. " All accepted theseoffers and underwent preplacement examinations, and Ran-dolph and Smith underwent subsequent examinations as well.2In the course of these examinations, plaintiffs completed med-ical history questionnaires and provided blood and urine sam-ples. The questionnaires asked, inter alia, whether the patienthad ever had any of sixty-one medical conditions, including"[s]ickle cell anemia,"3 "[v]enereal disease," and, in the caseof women, "[m]enstrual disorders."4The blood and urine samples given by all employees duringtheir preplacement examinations were tested for syphilis; inaddition, certain samples were tested for sickle cell trait; andcertain samples were tested for pregnancy. Lawrence discon-tinued syphilis testing in April 1993, pregnancy testing inDecember 1994, and sickle cell trait testing in June 1995.Defendants assert that they discontinued syphilis testingbecause of its limited usefulness in screening healthy popula-tions, and that they discontinued sickle cell trait testingbecause, by that time, most African-American adults hadalready been tested at birth. Lawrence continues to performpregnancy testing, but only on an optional basis. Defendantsfurther contend that "for many years" signs posted in thehealth examination rooms and "more recently" in the recep-tion area stated that the tests at issue would be administered.Following receipt of a right-to-sue letter from the EEOC,plaintiffs filed suit in September 1995 on behalf of all pastand present Lawrence employees who have ever been sub-jected to the medical tests at issue. Plaintiffs allege that thetesting of their blood and urine samples for syphilis, sicklecell trait, and pregnancy occurred without their knowledge orconsent, and without any subsequent notification that the testshad been conducted. They also allege that only black employ-ees were tested for sickle cell trait and assert the obvious factthat only female employees were tested for pregnancy.5Finally, they allege that Lawrence failed to provide safe-guards to prevent the dissemination of the test results. Theycontend that they did not discover that the disputed tests hadbeen conducted until approximately January 1995, and specif-ically deny that they observed any signs indicating that suchtests would be performed. Plaintiffs do not allege that thedefendants took any subsequent employment-related action onthe basis of their test results, or that their test results havebeen disclosed to third parties.On the basis of these factual allegations, plaintiffs contendthat the defendants violated the ADA by requiring, encourag-ing, or assisting in medical testing that was neither job-relatednor consistent with business necessity. Second, they contendthat the defendants violated the federal constitutional right toprivacy by conducting the testing at issue, collecting andmaintaining the results of the testing, and failing to provideadequate safeguards against disclosure of the results. Third,they contend that the testing violated their right to privacyunder Article I, S 1 of the California Constitution. Finally,plaintiffs contend that Lawrence and the Regents violatedTitle VII by singling out black employees for sickle cell traittesting and by performing pregnancy testing on femaleemployees generally.The state defendants moved for judgment on the pleadingsor, in the alternative, for summary judgment. The sole federaldefendant (the "Secretary"), then-Secretary of Energy HazelO'Leary, moved to dismiss the various claims against her forlack of subject matter jurisdiction and for failure to state aclaim. Turning first to the ADA claims,6 the district court rea-soned that because the medical questionnaires inquired intoinformation such as venereal disease and reproductive status,plaintiffs were on notice at the time of their examinations thatLawrence was engaging in medical inquiries that were neitherjob-related nor consistent with business necessity. Thus, giventhat the most recent examination occurred over two yearsbefore the filing of the complaint, the district court held thatall of the ADA claims were time-barred. It also rejected theargument that storage of the test results constitutes a"continuing violation" of the ADA that tolls the limitationsperiod.The district court next concluded that the federal privacyclaims were also time-barred and, in the alternative, failed onthe merits. On the grounds that the tests were "part of a com-prehensive medical examination to which plaintiffs hadconsented," and that plaintiffs had completed a medical his-tory form of "highly personal questions" that included inqui-ries concerning "venereal disease," "sickle cell anemia," and"menstrual problems," it concluded that plaintiffs were awareat the time of their examinations "of sufficient facts to putthem on notice" that their blood and urine would be tested forsyphilis, sickle cell trait, and pregnancy, and that their claimswere thus time-barred. The district court then held, in thealternative, that the testing had not violated plaintiffs' dueprocess right to privacy. Relying again on the fact that thetests were performed as part of a general medical examination"that covered the same areas as the tests themselves," it con-cluded that any "additional incremental intrusion " from thetests was so minimal that no constitutional violation couldhave occurred despite defendants' failure to identify "anundisputed legitimate governmental purpose" for the tests.Finally, the district court held that the Title VII claims,even if viable, were time-barred for the same reasons as werethe privacy and ADA claims. It also concluded that plaintiffshad failed to state a cognizable Title VII claim, reasoning thatplaintiffs had "neither alleged nor shown any connectionbetween these discontinued confidential tests and[their]employment terms or conditions, either in the past or in thefuture"; and finding that "[p]laintiffs' charge of stigmaticharm, stripped of hyperbole, speculation, and conjecture . . .evaporates."This appeal followed.DISCUSSIONI. Statute of Limitations[1] The district court dismissed all of the claims on statuteof limitations grounds because it found that the limitationsperiod began to run at the time the tests were taken, in whichcase each cause of action would be time-barred. Federal lawdetermines when the limitations period begins to run, and thegeneral federal rule is that "a limitations period begins to runwhen the plaintiff knows or has reason to know of the injurywhich is the basis of the action." Trotter v. InternationalLongshoremen's & Warehousemen's Union, 704 F.2d 1141,1143 (9th Cir. 1983). Because the district court resolved thestatute of limitations question on summary judgment, we mustdetermine, viewing all facts in the light most favorable toplaintiffs and resolving all factual ambiguities in their favor,whether the district court erred in determining that plaintiffsknew or should have known of the particular testing at issuewhen they underwent the examinations.[2] We find that whether plaintiffs knew or had reason toknow of the specific testing turns on material issues of factthat can only be resolved at trial. Plaintiffs' declarationsclearly state that at the time of the examination they did notknow that the testing in question would be performed, andthey neither saw signs nor received any other indications tothat effect.7 The district court had three possible reasons forconcluding that plaintiffs knew or should have expected thetests at issue: (1) they submitted to an occupational preplace-ment examination; (2) they answered written questions as towhether they had had "venereal disease," "menstrualproblems," or "sickle cell anemia"; and (3) they voluntarilygave blood and urine samples.8 Given the present state of therecord, these facts are hardly sufficient to establish that plain-tiffs either knew or should have known that the particular test-ing would take place.The question of what tests plaintiffs should have expectedor foreseen depends in large part upon what preplacementmedical examinations usually entail, and what, if anything,plaintiffs were told to expect. The record strongly suggeststhat plaintiffs' submission to the exam did not serve to affordthem notice of the particular testing involved. The letters thatplaintiffs received informed them merely that a "medicalexamination," "medical approval," or "health evaluation" wasan express condition of employment. These letters did notinform plaintiffs that they would be subjected to comprehen-sive diagnostic medical examinations that would inquire intointimate health matters bearing no relation to their responsi-bilities as administrative or clerical employees.The record, indeed, contains considerable evidence that themanner in which the tests were performed was inconsistentwith sound medical practice. Plaintiffs introduced before thedistrict court numerous expert declarations by medical schol-ars roundly condemning Lawrence's alleged practices andexplaining, inter alia, that testing for syphilis, sickle cell trait,and pregnancy is not an appropriate part of an occupationalmedical examination and is rarely if ever done by employersas a matter of routine; that Lawrence lacked any reasonablemedical or public health basis for performing these tests onclerical and administrative employees such as plaintiffs; andthat the performance of such tests without explicit notice andinformed consent violates prevailing medical standards.9These experts further agreed that "generally accepted stan-dards of occupational medicine" require employers to informtheir employees of the tests to be performed, to specifywhether the tests are a condition of employment, and to pro-vide notification of the results. Defendants counter that the"tests [for sickle cell trait] were consistent with good medicalpractices," Declaration of Henry Stauffer, M.D.,P 12, and thattesting for syphilis in a preventive health exam is an acceptedpractice. These factual disagreements over the objective medi-cal reasonableness of the specific tests can be resolved onlyat trial. For summary judgment purposes, foreseeability can-not be established on the ground that the plaintiffs wererequired to submit to a general medical examination.The district court also appears to have reasoned that plain-tiffs knew or had reason to know of the tests because theywere asked questions on a medical form concerning "venerealdisease," "sickle cell anemia," and "menstrual disorders," andbecause they gave blood and urine samples. The fact thatplaintiffs acquiesced in the minor intrusion of checking or notchecking three boxes on a questionnaire does not mean thatthey had reason to expect further intrusions in the form ofhaving their blood and urine tested for specific conditions thatcorresponded tangentially if at all to the written questions.First, the entries on the questionnaire were neither identical tonor, in some cases, even suggestive of the characteristics forwhich plaintiffs were tested. For example, sickle cell trait isa genetic condition distinct from actually having sickle cellanemia, and pregnancy is not considered a "menstrualdisorder" or a "venereal disease." Second, and more impor-tant, it is not reasonable to infer that a person who answers aquestionnaire upon personal knowledge is put on notice thathis employer will take intrusive means to verify the accuracyof his answers. There is a significant difference betweenanswering on the basis of what you know about your healthand consenting to let someone else investigate the most inti-mate aspects of your life.10 Indeed, a reasonable person couldconclude that by completing a written questionnaire, he hasreduced or eliminated the need for seemingly redundant andeven more intrusive laboratory testing in search of highly sen-sitive and non-job-related information.Furthermore, if plaintiffs' evidence concerning reasonablemedical practice is to be credited, they had no reason to thinkthat tests would be performed without their consent simplybecause they had answered some questions on a form and hadthen, in addition, provided bodily fluid samples: Plaintiffscould reasonably have expected Lawrence to seek their con-sent before running any tests not usually performed in anoccupational health exam -- particularly tests for intimatemedical conditions bearing no relationship to their responsi-bilities or working conditions as clerical employees. The merefact that an employee has given a blood or urine sample doesnot provide notice that an employer will perform any and alltests on that specimen that it desires, -- no matter how inva-sive -- particularly where, as here, the employer has yet tooffer a valid reason for the testing.[3] In sum, the district court erred in holding as a matter oflaw that the plaintiffs knew or had reason to know of thenature of the tests as a result of their submission to the preem-ployment medical examinations.11 Because the question ofwhat testing, if any, plaintiffs had reason to expect turns onmaterial factual issues that can only be resolved at trial, sum-mary judgment on statute of limitations grounds was inappro-priate with respect to the causes of action based on aninvasion of privacy in violation of the Federal and CaliforniaConstitutions, and also on the Title VII claims. 12II. Federal Constitutional Due Process Right of PrivacyThe district court also ruled, in the alternative, on the meritsof all of plaintiffs' claims except the ADA claims. We firstexamine its ruling with respect to the claim for violation ofthe federal constitutional right to privacy. While acknowledg-ing that the government had failed to identify any "undisputedlegitimate governmental purpose" for the three tests, the dis-trict court concluded that no violation of plaintiffs' right toprivacy could have occurred because any intrusions arisingfrom the testing were de minimis in light of (1) the "largeoverlap" between the subjects covered by the medical ques-tionnaire and the three tests and (2) the "overall intrusiveness"of "a full-scale physical examination." We hold that the dis-trict court erred.[4] The constitutionally protected privacy interest in avoid-ing disclosure of personal matters clearly encompasses medi-cal information and its confidentiality. Doe v. AttorneyGeneral of the United States, 941 F.2d 780, 795 (9th Cir.1991) (citing United States v. Westinghouse Elec. Corp., 638F.2d 570, 577 (3d Cir. 1980)); Roe v. Sherry, 91 F.3d 1270,1274 (9th Cir. 1996); see also Doe v. City of New York, 15F.3d 264, 267-69 (2d Cir. 1994). Although cases defining theprivacy interest in medical information have typicallyinvolved its disclosure to "third" parties, rather than the col-lection of information by illicit means, it goes without sayingthat the most basic violation possible involves the perfor-mance of unauthorized tests -- that is, the non-consensualretrieval of previously unrevealed medical information thatmay be unknown even to plaintiffs. These tests may also beviewed as searches in violation of Fourth Amendment rightsthat require Fourth Amendment scrutiny. The tests at issue inthis case thus implicate rights protected under both the FourthAmendment and the Due Process Clause of the Fifth or Four-teenth Amendments. Yin v. California, 95 F.3d 864, 870 (9thCir. 1996), cert. denied, 117 S. Ct. 955 (1997).[5] Because it would not make sense to examine the collec-tion of medical information under two different approaches,we generally "analyze[ ] [medical tests and examinations]under the rubric of [the Fourth] Amendment. " Id. at 871 &n.12. Accordingly, we must balance the government's interestin conducting these particular tests against the plaintiffs'expectations of privacy. Id. at 873. Furthermore, "applicationof the balancing test requires not only considering the degreeof intrusiveness and the state's interests in requiring thatintrusion, but also `the efficacy of this [the state's] means formeeting' its needs." Id. (quoting Vernonia Sch. Dist. 47J v.Acton,
515 U.S. 646, 660
(1995)).[6] The district court erred in dismissing the claims on theground that any violation was de minimis, incremental, oroverlapping. The latter two grounds are actually just thecourt's explanations for its adoption of its "de minimis" con-clusion. They are not in themselves reasons for dismissal. Norif the violation is otherwise significant does it become insig-nificant simply because it is overlapping or incremental. Wecannot, therefore, escape a scrupulous examination of thenature of the violation, although we can, of course, considerwhether the plaintiffs have in fact consented to any part of thealleged intrusion.[7] One can think of few subject areas more personal andmore likely to implicate privacy interests than that of one'shealth or genetic make-up. Doe, 15 F.3d at 267 ("Extensionof the right to confidentiality to personal medical informationrecognizes there are few matters that are quite so personal asthe status of one's health"); see Vernonia Sch. Dist. 47J, 515U.S. at 658 (noting under Fourth Amendment analysis that "itis significant that the tests at issue here look only for drugs,and not for whether the student is, for example, epileptic,pregnant, or diabetic"). Furthermore, the facts revealed by thetests are highly sensitive, even relative to other medical infor-mation. With respect to the testing of plaintiffs for syphilisand pregnancy, it is well established in this circuit "that theConstitution prohibits unregulated, unrestrained employerinquiries into personal sexual matters that have no bearing onjob performance." Schowengerdt v. General Dynamics Corp.,823 F.2d 1328, 1336 (9th Cir. 1987) (citing Thorne v. City ofEl Segundo, 726 F.2d 459, 470 (9th Cir. 1983)). The fact thatone has syphilis is an intimate matter that pertains to one'ssexual history and may invite tremendous amounts of socialstigma. Pregnancy is likewise, for many, an intensely privatematter, which also may pertain to one's sexual history andoften carries far-reaching societal implications. See Thorne,726 F.2d at 468-70; Doe, 15 F.3d at 267 (noting discrimina-tion and intolerance to which HIV-positive persons areexposed). Finally, the carrying of sickle cell trait can pertainto sensitive information about family history and reproductivedecisionmaking. Thus, the conditions tested for were aspectsof one's health in which one enjoys the highest expectationsof privacy.[8] As discussed above, with respect to the question of thestatute of limitations, there was little, if any,"overlap"between what plaintiffs consented to and the testing at issuehere. Nor was the additional invasion only incremental. Insome instances, the tests related to entirely different condi-tions. In all, the information obtained as the result of the test-ing was qualitatively different from the information thatplaintiffs provided in their answers to the questions, and washighly invasive. That one has consented to a general medicalexamination does not abolish one's privacy right not to betested for intimate, personal matters involving one's health --nor does consenting to giving blood or urine samples,13 or fill-ing out a questionnaire. As we have made clear, revealingone's personal knowledge as to whether one has a particularmedical condition has nothing to do with one's expectationsabout actually being tested for that condition. Thus, the intru-sion was by no means de minimis.14 Rather, if unauthorized,the testing constituted a significant invasion of a right that isof great importance, and labelling it minimal cannot and doesnot make it so.[9] Lawrence further contends that the tests in question,even if their intrusiveness is not de minimis, would be justi-fied by an employer's interest in performing a general physi-United States Dep't of Army, 698 F. Supp. 627 (E.D. Va. 1988). WhilePlowman concludes that an HIV-test is "significantly less invasive" whenconducted on a blood sample already given for other purposes, it stillengages in proper Fourth Amendment analysis by weighing this intrusionagainst governmental justifications. Id. at 636-37.cal examination. This argument fails because issues of factexist with respect to whether the testing at issue is normallypart of a general physical examination.15 There would ofcourse be no violation if the testing were authorized, or if theplaintiffs reasonably should have known that the blood andurine samples they provided would be used for the disputedtesting and failed to object. However, as we concluded in Sec-tion I, material issues of fact exist as to those questions. Sum-mary judgment in the alternative on the merits of the federalconstitutional privacy claim was therefore incorrect.III. Right to Privacy Under Article I,S 1 of the California ConstitutionWith respect to the state privacy claims, defendants argue,as they did with respect to the federal privacy claims, that theintrusions occasioned by the testing were so minimal that thegovernment need not demonstrate a legitimate interest in per-forming the tests. In the alternative, they argue that the intru-sions were so minimal that plaintiffs' privacy interests werenecessarily overcome by the government's interest in per-forming the preplacement examinations. We understand thisargument to be essentially the same as the argument that thesetests are a part of an ordinary general medical examination.Defendants urge no additional governmental interest butappear to rely entirely on the interest that any employer mightassert in requiring potential employees to undergo generalmedical testing. The district court did not adopt either of thedefendants' positions expressly but simply ruled that plaintiffs"could not proceed" because the "undisputed facts" --namely, completion of the medical questionnaire, consent tothe preplacement examination, and the voluntary giving ofblood and urine samples -- showed that the tests had inflicted"only a de minimis privacy invasion."[10] To assert a cause of action under Article I, S 1 of theCalifornia Constitution, one must establish three elements: (1)a legally protected privacy interest; (2) a reasonable expecta-tion of privacy under the circumstances; and (3) conduct bythe defendant that amounts to a "serious invasion " of the pro-tected privacy interest. Loder v. City of Glendale, 927 P.2d1200, 1228 (Cal. 1997) (quoting Hill v. National CollegiateAthletic Ass'n, 865 P.2d 633, 657 (Cal. 1994), cert. denied,118 S.Ct. 44 (1997)). These elements must be "viewed simplyas `threshold elements,' " after which the court must conducta balancing test between the "countervailing interests" for theconduct in question and the intrusion on privacy resultingfrom the conduct.16 A showing of "countervailing interests"may, in turn, be rebutted by a showing that there were"feasible and effective alternatives" with a "lesser impact onprivacy interests." Hill, 865 P.2d at 657.[11] For much the same reasons as we have discussedabove with respect to the statute of limitations and federal pri-vacy claims, the district court erred in dismissing the stateconstitutional privacy claim. The only possible differencebetween the state claim and the federal claim is the thresholdrequirement that the invasion be serious, and for purposes ofsummary judgment, that requirement has been more than met.17For the reasons discussed above, we find that material issuesof fact exist with respect to whether the defendants had anyinterest at all in obtaining the information and whether plain-tiffs had a reasonable expectation of privacy under the cir-cumstances. Both these questions involve a factual disputeregarding the ordinary or accepted medical practice regardinggeneral or pre-employment medical exams. Accordingly, thedistrict court also erred in dismissing the state constitutionalprivacy claims.IV. Title VII Claims The district court also dismissed the Title VII counts on themerits on the ground that plaintiffs had failed to state a claimbecause the "alleged classifications, standing alone, do notsuffice to provide a cognizable basis for relief under TitleVII" and because plaintiffs had neither alleged nor demon-strated how these classifications had adversely affected them.[12] Section 703(a) of Title VII of the Civil Rights Act of1964 provides that it is unlawful for any employer: (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employ- ment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. S 2000e-2(a) (emphasis added). The PregnancyDiscrimination Act further provides that discrimination on thebasis of "sex" includes discrimination "on the basis of preg-nancy, childbirth, or related medical conditions. " 42 U.S.C.S 2000e(k). "In accordance with Congressional intent, theabove language is to be read in the broadest possible terms.The intent of Congress was not to list specific discriminatorypractices, nor to definitively set out the scope of the activitiescovered." EEOC Compliance Manual (CCH) S 613.1, atP 2901 (citing Rogers v. EEOC, 454 F.2d 234 (5th Cir.1971)).Despite defendants' assertions to the contrary, plaintiffs'Title VII claims fall neatly into a Title VII framework: Plain-tiffs allege that black and female employees were singled outfor additional nonconsensual testing and that defendants thusselectively invaded the privacy of certain employees on thebasis of race, sex, and pregnancy. The district court held that(1) the tests did not constitute discrimination in the "terms" or"conditions" of plaintiffs' employment; and that (2) plaintiffshave failed to show any "adverse effect" as a result of thetests. It also granted the plaintiffs leave to amend their com-plaint to show adverse effect.[13] Under S 2000e-2(a)(1), supra, an employer who"otherwise . . . discriminate[s]" with respect to the "terms" or"conditions" of employment on account of an illicit classifica-tion is subject to Title VII liability. It is well established thatTitle VII bars discrimination not only in the "terms" and"conditions" of ongoing employment, but also in the "terms"and "conditions" under which individuals may obtainemployment. See, e.g., Griggs v. Duke Power Co., 401 U.S.424, 432-37 (1971) (facially neutral educational and testingrequirements that are not reasonable measures of job perfor-mance and have disparate impact on hiring of minorities vio-late Title VII). Thus, for example, a requirement ofpreemployment health examinations imposed only on femaleemployees, or a requirement of preemployment backgroundsecurity checks imposed only on black employees, wouldsurely violate Title VII.18[14] In this case, the term or condition for black employeeswas undergoing a test for sickle cell trait; for women it wasundergoing a test for pregnancy.19 It is not disputed that thepreplacement exams were, literally, a condition of employ-ment: the offers of employment stated this explicitly. Thus,the employment of women and blacks at Lawrence was con-ditioned in part on allegedly unconstitutional invasions of pri-vacy to which white and/or male employees were notsubjected. An additional "term or condition" requiring anunconstitutional invasion of privacy is, without doubt, action-able under Title VII. Furthermore, even if the intrusions didnot rise to the level of unconstitutionality, they would still bea "term" or "condition" based on an illicit category asdescribed by the statute and thus a proper basis for a Title VIIaction.20 Thus, the district court erred in ruling on the plead-ings that the plaintiffs had failed to assert a proper Title VIIclaim under S 2000e-2(a)(1).[15] The district court also erred in finding as a matter oflaw that there was no "adverse effect" with respect to the testsas required under S 2000e-2(a)(2). The unauthorized obtain-ing of sensitive medical information on the basis of race orsex would in itself constitute an "adverse effect," or injury,under Title VII. Thus, it was error to rule that as a matter oflaw no "adverse effect" could arise from a classification thatsingled out particular groups for unconstitutionally invasive,non-consensual medical testing, and the district court erred indismissing the Title VII claims on this ground as well.V. The ADA Claims Plaintiffs may challenge only the medical examinations thatoccurred "on or after January 26, 1992," which is the effectivedate of the ADA for public entities.21 The only plaintiffs whounderwent any examinations or testing on or after that dateare Fuentes and Garcia, who were tested in April 1992 andAugust 1993, respectively. The complaint alleges that defen-dants violated the ADA by requiring medical examinationsand making medical inquiries that were "neither job-relatednor consistent with business necessity." (Compl.P 64 (citing42 U.S.C. S 12112(c)(4)). On appeal, plaintiffs also argue that"the ADA limits medical recordkeeping by an employer to theresults of job-related examinations consistent with businessnecessity." Appellant Br. at 49 (citing 42 U.S.C.S 12112(d)).Plaintiffs do not allege that defendants made use of informa-tion gathered in the examinations to discriminate against themon the basis of disability; indeed, neither Garcia nor Fuentesreceived any positive test results.[16] The ADA creates three categories of medical inquiriesand examinations by employers: (1) those conducted prior toan offer of employment ("preemployment" inquiries andexaminations); (2) those conducted "after an offer of employ-ment has been made" but "prior to the commencement of . . .employment duties" ("employment entrance examinations");and (3) those conducted at any point thereafter. It is undis-puted that the second category, employment entrance exami-nations, as governed by S 12112(d)(3), are the examinationsand inquiries to which Fuentes and Garcia were subjected.Unlike examinations conducted at any other time, an employ-ment entrance examination need not be concerned solely withthe individual's "ability to perform job-related functions,"S 12112(d)(2); nor must it be "job-related or consistent withbusiness necessity," S 12112(d)(4). Thus, the ADA imposesno restriction on the scope of entrance examinations; it onlyguarantees the confidentiality of the information gathered,S 12112(d)(3)(B), and restricts the use to which an employermay put the information. S 12112(d)(3)(C); see 42 U.S.C.S 12112(d)(1) (medical examinations and inquiries must beconsistent with the general prohibition in S 12112(a) againstdiscrimination on the basis of disability); 29 C.F.R.S 1630.14(b)(3) (if the results of the examination exclude anindividual on the basis of disability, the exclusionary criteriathemselves must be job-related and consistent with businessnecessity). Because the ADA does not limit the scope of suchexaminations to matters that are "job-related and consistentwith business necessity," dismissal of the ADA claims wasproper.Plaintiffs' new argument on appeal that the ADA limitsmedical recordkeeping to "the results of job-related examina-tions consistent with business necessity" also lacks merit.Section 12112(d)(3)(B) sets forth the conditions under whichinformation obtained during the entrance examination must bekept but clearly does not purport to restrict the records thatmay be kept to matters that are "job-related and consistentwith business necessity."22 Thus plaintiffs' ADA claims alsofail in this respect.The only possible ADA claim is directed at the defendants'alleged failure to maintain plaintiffs' medical records in themanner required by S 12112(d)(3)(B). The allegations inplaintiffs' complaint do not explicitly set forth such a viola-tion but incorporate by reference the factual allegation that thedefendants "[f]ail[ed] to provide safeguards to prevent the dis-semination to third parties of sensitive medical informationregarding the plaintiffs." On appeal the plaintiffs argue onlythat the defendants have "failed to describe the procedures bywhich a third party might gain access to the records, and theenforcement of any rules, policies, regulations or proceduresto prevent third parties from gaining access to the records."To the extent that one can construe the complaint to allegethat the defendants are in violation of S 12112(d)(3)(B), thebare allegation that defendants have not provided, or ade-quately described, safeguards fails to state a violation of theADA requirements as set forth in S 12112(d)(3)(B) or asimplemented in Department orders. See DOE Order 440.1(Sep. 30, 1995); DOE Order 5480.8A (June 6, 1992); DOEOrder 5480.8 (May 22, 1981). Accordingly, dismissal of theADA claims was proper.VI. Plaintiffs' Claims Are Not MootThe Secretary contends that the claims against him in hisofficial capacity for injunctive and declaratory relief are mootbecause (1) the only testing that the Department ever requiredwas syphilis testing, and (2) the DOE order that requiredsyphilis testing was cancelled on June 22, 1992, and replacedby a different order that requires "[u]rinalysis and serology"only "when indicated." Compare DOE Order 5480.8 (May22, 1981), with DOE Order 5480.8A (June 26, 1992).Although the state defendants do not raise the issue, a similarargument can be made on their behalf: Lawrence discontinuedsyphilis testing in April 1993, pregnancy testing in December1994, and sickle cell trait testing in June 1995.[17] "[A] case is moot when the issues presented are nolonger `live' or the parties lack a legally cognizable interestin the outcome." County of Los Angeles v. Davis, 440 U.S.625, 631 (1979) (quoting Powell v. McCormack, 395 U.S.486, 496 (1969)). "Mere voluntary cessation of allegedly ille-gal conduct does not moot a case; it if did, the courts wouldbe compelled to leave [t]he defendant . . . free to return to hisold ways." United States v. Concentrated Phosphate ExportAss'n,
393 U.S. 199, 203
(1968) (quoting United States v.W.T. Grant Co.,
345 U.S. 629, 632
(1953)). Nevertheless, partor all of a case may become moot if (1) "subsequent events[have] made it absolutely clear that the allegedly wrongfulbehavior [cannot] reasonably be expected to recur,"Concentrated Phosphate,
393 U.S. at 203
, and (2) "interimrelief or events have completely and irrevocably eradicatedthe effects of the alleged violation." Lindquist v. Idaho StateBd. of Corrections, 776 F.2d 851, 854 (9th Cir. 1985) (quot-ing Davis,
440 U.S. at 631
). "The burden of demonstratingmootness `is a heavy one.' " Davis,
440 U.S. at 631
(quotingW.T. Grant,
345 U.S. at 632
-33).[18] Defendants have not carried their heavy burden ofestablishing either that their alleged behavior cannot be rea-sonably expected to recur, or that interim events have eradi-cated the effects of the alleged violation. First, they do notcontend that the Department will never again require or per-mit, or that Lawrence will never again conduct, the tests atissue. They assert only that syphilis testing was discontinuedbecause of its limited usefulness in screening healthy popula-tions, and that sickle cell trait testing was discontinued asredundant of testing that most African-Americans nowreceive at birth. Moreover, in the case of pregnancy testing,they do not even argue that such testing is no longer medi-cally useful; rather, they have simply made it optional. Defen-dants have neither asserted nor demonstrated that they willnever resume mandatory testing for intimate medical condi-tions; nor have they offered any reason why they might notreturn in the future to their original views on the utility ofmandatory testing. In contrast, plaintiffs have introduced evi-dence, in the form of correspondence between Lawrence andthe department, that the syphilis tests were discontinuedmerely for reasons of "cost-effectiveness." See ConcentratedPhosphate,
393 U.S. at 203
(holding that mere statement thatit would be "uneconomical" for defendants to continue theirallegedly wrongful conduct "cannot suffice to satisfy theheavy burden" of establishing mootness).[19] Second, defendants also have not asserted that any"interim relief or events have completely and irrevocablyeradicated the effects of the alleged violation. " Lindquist, 776F.2d at 854. Indeed, it is undisputed that the Departmentrequires Lawrence to retain plaintiffs' test results and thatLawrence does in fact do so. See DOE Order 440.1, datedSeptember 30, 1995 ("Employee medical records shall beadequately protected and stored permanently."). Even if thecontinued storage, against plaintiffs' wishes, of intimate med-ical information that was allegedly taken from them byunconstitutional means does not itself constitute a violation oflaw, it is clearly an ongoing "effect" of the allegedly unconsti-tutional and discriminatory testing, and expungement of thetest results would be an appropriate remedy for the allegedviolation. Cf. Fendler v. United States Parole Comm'n, 774F.2d 975, 979 (9th Cir. 1985) ("Federal courts have the equi-table power `to order the expungement of Governmentrecords where necessary to vindicate rights secured by theConstitution or by statute.' ") (quoting Chastain v. Kelley, 510F.2d 1232, 1235 (D.C. Cir. 1975)); Maurer v. Pitchess, 691F.2d 434, 437 (9th Cir. 1982).23 Accordingly, plaintiffs'claims for injunctive and declaratory relief are not moot.VII. Irreparable Injury[20] Finally, the Secretary contends that plaintiffs cannotseek injunctive relief because they have not alleged irrepara-ble injury. To obtain injunctive relief, " `[a] reasonable show-ing' of a `sufficient likelihood' that plaintiff will be injuredagain is necessary." Kruse v. State of Hawai'i, 68 F.3d 331,335 (9th Cir. 1995) (internal quotation marks omitted); seeCity of Los Angeles v. Lyons,
461 U.S. 95, 111
(1983). "Thelikelihood of the injury recurring must be calculable and ifthere is no basis for predicting that any future repetitionwould affect the present plaintiffs, there is no case orcontroversy." Sample v. Johnson, 771 F.2d 1335, 1340 (9thCir. 1985). In this case, plaintiffs seek not only to enjoinfuture illegal testing, but also to require defendants, inter alia,to notify all employees who may have been tested illegally;to destroy the results of such illegal testing upon employeerequest; to describe any use to which the information was put,and any disclosures of the information that were made; and tosubmit Lawrence's medical department to "independent over-sight and monitoring."[21] At the very least, the retention of undisputedly inti-mate medical information obtained in an unconstitutional anddiscriminatory manner would constitute a continuing"irreparable injury" for purposes of equitable relief. More-over, the Department orders still require Lawrence to conductpreplacement examinations. DOE Order 440.1 (Sep. 30,1995). Thus, there seems to be at least a reasonable possibilitythat Lawrence would again conduct undisclosed medical test-ing of its employees for intimate medical conditions. Forthese reasons, a request for injunctive relief is proper.CONCLUSIONBecause material and disputed issues of fact exist withrespect to whether reasonable persons in plaintiffs' positionwould have had reason to know that the tests were being per-formed, and because the tests were a separate and more inva-sive intrusion into their privacy than the aspects of theexamination to which they did consent, the district court erredin granting summary judgment on statute of limitationsgrounds with respect to the Title VII claims and the federaland state constitutional privacy claims. The district court alsoerred in dismissing the federal and state constitutional privacyclaims and the Title VII claims on the merits. The districtcourt's dismissal of the ADA claims was proper. None of theSecretary's arguments with respect to the claims broughtagainst him in his official capacity has merit.AFFIRMED IN PART, REVERSED IN PART, ANDREMANDED. the end
___________________________FOOTNOTES *Federico Pena has been substituted for his predecessor in office, HazelO'Leary, pursuant to Fed. R. App. P. 43(c)(1).1 Plaintiffs named Hazel O'Leary, former Secretary of the Departmentof Energy, as a defendant in both her personal and official capacities.Because plaintiffs expressly conceded at oral argument that the claimsagainst O'Leary in her personal capacity are meritless, we affirm the dis-missal of those claims. As to the remaining claims against her, FedericoPea, her successor in office, has been substituted as a defendant in his offi-cial capacity. See supra note *.2 Plaintiffs-appellants underwent examinations on the following occa-sions: Norman-Bloodsaw on December 16 or 17, 1986; Fuentes on April28 or 29, 1992; Ellis in June 17, 1968, November 9, 1970, August 7, 1972,April 22, 1974, November 17, 1979, and May 22, 1984; Covington onJanuary 9, 1992; Randolph on July 23, 1981, and September 10, 1984;Garcia on August 16, 1993; and Smith on December 12, 1985, and Febru-ary 29, 1988.3 Sickle cell anemia is a physical affliction in which a large proportionor majority of an individual's red blood cells become sickle-shaped.Webster's Third New International Dictionary 2111 (1976). Sickle celltrait is a genetic condition in which an individual carries the gene thatcauses sickle cell anemia. Id. The sickle cell gene is only semi-dominant:if the carrier of the gene is heterozygous (meaning that the gene is pairedwith a non-sickle cell gene), some of his or her red blood cells may sickle,but usually not to a sufficient degree to result in actual sickle cell anemia.Id.4 The section of the questionnaire also asks women if they have ever hadabnormal pap smears and men if they have ever had prostate gland disor-ders.5 Their proposed first amended complaint, which plaintiffs did not filein light of the district court's rulings, contains the additional allegation that6 The district court observed, and plaintiffs do not dispute, that Garciaand Fuentes were the only named plaintiffs to have undergone examina-tions after the effective date of the ADA, and hence the only plaintiffs whocould assert ADA claims.7 Although Lawrence has submitted a declaration stating that signs wereposted that advised that the tests in question would be administered, itdoes not contend that the alleged posting of these signs put any of theplaintiffs on notice of the relevant testing. This contention would, ofcourse, in light of the plaintiffs' declarations, merely raise an additionalissue of fact to be resolved at trial.8 The district court did not specify whether, in its view, plaintiffs actu-ally knew of the testing at the time of their respective examinations, orwhether they merely had reason to know; nor did it identify the particularfacts that it deemed sufficient to place plaintiffs on notice of the allegedviolations.9 See, e.g., Declaration of Mark Cullen, M.D., Professor of Medicine andPublic Health and Director of the Occupational Medicine Program at YaleUniversity P 6 ("No conceivable justification could exist for screeningoffice or administrative employees for sickle cell[trait] or pregnancy.There is no justification for an employer including syphilis in a generalmedical examination."); id. P 7 ("I am not aware of any employer whichhas routinely screened employees for pregnancy or sickle cell [trait], [or]for syphilis."); Declaration of Neil Holtzman, M.D., Professor of Pediat-rics, The Johns Hopkins School of Medicine P 7 ("[I]t is not acceptablemedical practice for employers to conduct genetic screening of employeesunless there is a high probability that the conditions detected . . . willaffect the ability of the worker to perform the job[or] the job poses a sig-nificant threat to the worker or others."); Declaration of JacquelineMoline, M.D., M.Sc., Instructor in Environmental and Occupational Medi-cine, Mount Sinai Medical Center, P 5 ("None of these tests should havebeen done on a routine basis, or as part of an occupational medical exami-nation unrelated to any particular exposure. Administration of these testswas not consistent with good medical practice in occupationalmedicine.").10 Under the district court's and defendants' reasoning, answering aquestion such as, "Do you know if you carry the HIV-virus?," or even,"Do you know if you have any sexually transmitted diseases?," as part ofa pre-employment physical, and then giving a blood sample as part of thatsame test, would erase all privacy rights one has to not being tested for theHIV-virus.11 Although Covington's declaration states that he "requested andreceived" his medical file in 1992, he also states that he "did not open theenvelope containing the file after receiving it. " That Covington receivedhis medical records in 1992 does not, therefore, resolve material issues offact as to whether he learned of the tests before 1995.12 As to the Title VII race discrimination claims, even if the plaintiffshad known that such tests were taken, they would not have known thatthey were not uniformly administered and thus would not have known thefacts that form the basis of those claims.Because the ADA claims fail on the merits, as discussed below, we donot determine whether the district court erred in dismissing those claimson statute of limitations grounds.13 Indeed, the Supreme Court has recognized that while the taking of abodily fluid sample implicates one's privacy interests, "[t]he ensuingchemical analysis of the sample to obtain physiological data is a furtherintrusion of the tested employee's privacy interests." Skinner v. Railway15 Lawrence has not identified a single interest in performing the tests inquestion other than that they are part of generally accepted medical prac-tice. Thus, on the present record, if the plaintiffs were to prevail on thestatute of limitations issue, they would also prevail with respect to the fed-eral privacy claim.16 The California Supreme Court has emphasized that Hill did not"adopt[ ] a sweeping new rule under which a challenge to conduct that sig-nificantly affects a privacy interest protected by the state Constitution maybe rejected without any consideration of either the legitimacy or strengthof the defendant's justification for the conduct. " American Academy ofPediatrics v. Lungren, 940 P.2d 797, 812 (Cal. 1997).17 Under California law, a legally recognizable privacy interest arisesfrom the sort of information revealed by the tests at issue. See Loder, 927P.2d at 1232 (finding procedure that, inter alia, "authorizes the adminis-tering entity to test the sample in order to acquire information concerningthe internal state of the tested individual's body " to clearly intrude uponstate privacy interests).18 This would be the case even though the extra requirement had notcaused any of the employees not to be hired. See Hashimoto v. Dalton,118 F.3d 671, 676 (9th Cir. 1997) (holding that unlawful personnel actionthat "turn[s] out to be inconsequential goes to the issue of damages, notliability"); EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989).19 See supra note 5 regarding the proposed amended complaint allegingthe performance of repeated syphilis testing on black and Latino employ-ees. In light of our holdings, the amendment would clearly be appropriatefollowing remand.20 This is not to say that a Title VII action would necessarily lie in a caseinvolving two different but equivalent tests administered to men andwomen. Thus, for example, if test were given to men for testicular cancerand to women for ovarian cancer, there would probably be no cause ofaction under Title VII. In the case of a pregnancy test for women, how-ever, it is doubtful that an equivalent test could be offered to men.An exception of course exists for pregnancy testing in those "instancesin which . . . pregnancy actually interferes with the employee's ability toperform the job." International Union, United Auto., Aerospace, & Agric.Implement Workers, UAW v. Johnson Controls, Inc.,
499 U.S. 187
, 204(1991). No such exception is asserted here.21 The relevant portions of Title II of the ADA, which applies to publicentities, were effective on January 26, 1992, 18 months after enactment.Title I of the ADA has an effective date of July 26, 1992, 24 months afterenactment. SS 108, 205, Pub. L. No. 101-336.22 Section 12112(d)(3)(B) provides that information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medi- cal record, except that -- (i) supervisors and managers may be informed regarding nec- essary restrictions on the work or duties of the employee and nec- essary accommodations; (ii) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and (iii) government officials investigating compliance with this chapter shall be provided relevant information[.]23 Fendler and Maurer both concern the equitable power of federalcourts to expunge criminal convictions in particular. While the exercise ofthat "narrow power" is "appropriately used only in extremecircumstances," United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991),destruction of plaintiffs' medical records is a relatively moderate measure.