Non-Disabled Applicant Can Go To Trial Based on Company's Pre-Employment Medical Inquiry, Says Eleventh Circuit

A non-disabled applicant for employment can proceed to trial under the Americans with Disabilities Act based on a company’s unlawful pre-employment medical inquiry, according to a recent decision by the Eleventh Circuit Court of Appeals, Harrison v. Benchmark Electronics Huntsville, Inc. (11th Cir. January 11, 2010). 

The case arose when John Harrison was working as a temporary employee for Aerotek, which assigned Harrison to work at Benchmark Electronics Huntsville, Inc. (BEHI). Harrison has epilepsy and takes barbiturates to control his condition. Harrison applied for permanent employment at BEHI and consented to a drug test.  When his drug test came back positive, his supervisor learned about it and was in the room when Harrison explained his epileptic condition to the medical review officer (MRO). Soon thereafter, his supervisor decided not to extend an offer to Harrison and asked Aerotek not to return Harrison to BEHI. 

Harrison filed a charge with the EEOC, which determined that Harrison was not disabled. Harrison then sued BEHI under the ADA, claiming that BEHI engaged in an unlawful pre-employment medical inquiry under the ADA. The district court granted summary judgment to BEHI. The court ruled that, even assuming Harrison had a right to sue based on a pre-employment medical inquiry, BEHI was entitled to ask whether he had a legitimate use for such medication.

A panel of the Eleventh Circuit Court of Appeals reversed the district court’s decision. At the pre-offer stage, the court noted, an employer may not conduct a medical examination or make inquiries of a job applicant as to whether the applicant is an individual with a disability, or as to the nature or severity of such disability. An employer may only inquire into the ability of an applicant to perform job-related functions. Joining several other circuit courts of appeal, the court held that this prohibition is not limited to disabled applicants. “Allowing non-disabled applicants to sue will enhance and enforce Congress’s prohibition,” the court reasoned. “Moreover, a contrary reading would vitiate [the Act’s] effectiveness.” Quoting an earlier Tenth Circuit decision, the court wrote that “[i]t makes little sense to require an [applicant] to demonstrate that he has a disability to prevent his [potential] employer from inquiring as to whether or not he has [one].”

The court then addressed the merits of Harrison’s claim. First, the court noted that the ADA recognizes an exemption to the pre-employment inquiry rule for drug tests. Not only are drug tests permissible at the pre-offer stage, but so are follow-up questions in response to a positive drug test, such as: “What medications have you taken that might have resulted in this positive test result?” However, disability-related questions are still prohibited. 

The court ruled that under the circumstances, i.e. because Harrison’s supervisor told him that his drug test was positive, because Harrison disclosed his prescription, and because the supervisor was present in the room when Harrison explained his medical condition to the MRO, “a reasonable jury could infer that [the supervisor’s] presence in the room was an intentional attempt likely to elicit information about a disability in violation of the ADA’s prohibition against pre-employment medical inquiries.” The court also ruled that a reasonable jury could infer that the supervisor based his decision not to hire Harrison on information gleaned from an improper medical inquiry.

For employers in the Eleventh Circuit, the Harrison case offers a couple of valuable lessons. First, employers must not make prohibited pre-employment medical inquiries of any applicant, including applicants that are apparently or obviously not disabled. Harrison makes clear that any applicant is a potential plaintiff under the ADA. 


Second, employers must be extremely careful with the handling of information obtained from drug tests. As Harrison illustrates, there is a fine and arguably fuzzy line between permissible follow-up questions following a positive drug test, and impermissible disability-related questions. To avoid crossing this line, employers may wish to consider administering drug tests only after making a conditional offer of employment to applicants. Once a conditional job offer is made, the employer may ask disability-related questions as long as this is done for all entering employees in that job category.   

More Thoughts on the ADA Amendments Act of 2008

 A client alert on the ADAAA was released today by my firm, Epstein Becker & Green.  The alert predicts that the ADAAA will:

expand the coverage of the ADA to many more individuals, even those whose impairments have little or no actual impact on their major life activities due to mitigating measures. It will also substantially ease the burden for ADA plaintiffs. A rise in the number of ADA lawsuits against employers is likely and defending such lawsuits will be more challenging. Employers will necessarily face the duty to engage in the interactive process far more frequently and be forced to assess whether various accommodations are reasonable or if they are undue hardships. This will be particularly true for impairments affecting mental processes including concentrating and thinking.

The alert offers a few points of sound advice to employers on how to comply with the ADAAA:

  • To ensure that requests for accommodations are properly handled and to minimize litigation exposure, employers should carefully review their ADA policies and how they handle ADA issues.  Make sure that the company's policies are not inconsistent with the new legislation.
  • Conduct supervisory training to alert the company's managers about the expanded scope of the ADA under the new legislation.
  • Review job descriptions to ensure that they accurately identify all essential job functions. Given the expanded scope of the ADA and the increased number of employees who will be deemed disabled, accurate job descriptions are more critical than ever in evaluating requests for accommodations from disabled employees.



President Bush Signs ADA Amendments Act of 2008

Yesterday President Bush signed the ADA Amendments Act of 2008 ("ADAAA").  The law is designed to strengthen worker protections under the ADA by, in effect, reversing the holdings of several Supreme Court decisions interpreting the ADA.

The summary accompanying the new legislation states as follows:

ADA Amendments Act of 2008 - (Sec. 4) Amends the Americans with Disabilities Act of 1990 (ADA) to redefine the term "disability," including by defining "major life activities" and "being regarded as having such an impairment."

Sets forth rules of construction regarding the definition of "disability," including that: (1) such term shall be construed in favor of broad coverage of individuals under the Act; (2) an impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability; (3) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and (4) the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of specified mitigating measures.

(Sec. 5) Prohibits employment discrimination against a qualified individual on the basis of disability. (Current law prohibits employment discrimination against a qualified individual with a disability because of the disability.)

Prohibits the use of qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be related to the position and is consistent with business necessity.

(Sec. 6) Declares that nothing in the Act: (1) alters the standards for determining eligibility for benefits under state worker's compensation laws or under state and federal disability benefit programs; (2) alters the requirement to make reasonable modifications in policies or procedures, unless such modifications would fundamentally alter the nature of the goods, services, facilities, or accommodations involved; or (3) provides the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual's lack of disability.

Declares that the authority of the Equal Employment Opportunity Commission (EEOC), the Attorney General, and the Secretary of Transportation to issue regulations includes the authority to issue regulations implementing the definitions of this Act.

(Sec. 7) Makes conforming amendments to the Rehabilitation Act of 1973.

Dan Schwartz, author of the Connecticut Employment Law Blog, has also provided a nice summary of the new legislation, noting that  "ADA cases are likely to move from "threshold" issues (whether the person has a disability) to "liability" issues (whether the person was actually discriminated against)."

The ADAAA enjoyed bipartisan support.  But it is not without its critics. Andrew M. Grossman, Senior Legal Policy Analyst for Center for Legal & Judicial Studies, at the Heritage Foundation, has opined that the ADAAA "represents a radical expansion of the ADA that would likely have far-reaching effects and unintended consequences... At the same time that a much larger portion of the workforce would fall under the ADA's protections, the law would also become far more uncertain, driving up compliance costs and legal expenses." In other words, the ADAAA is good news for lawyers, bad news for employers. 

The law goes into effect on January 1, 2009.  In future posts I will offer some thoughts on how to comply with the new law.


Is ADA Expansion Now Likely? Keep an Eye on the ADA Restoration Act of 2008

The CapitolMy partner Frank Morris (who, incidentally, was a professor of mine when I attended George Washington University Law School) has written a client alert about the ADA Restoration Act of 2008.  The alert is reprinted below.  Florida employers should keep a close eye on this pending legislation, which could go into effect early next year. 

The House of Representatives on June 25 passed the ADA Restoration Act of 2008 (H.R. 3195) by an overwhelming vote of 402-17. It is now quite possible that the Senate may consider and pass this bill before Congress adjourns. The 2008 bill has some key differences from the original bill introduced in 2007. It reflects compromises between business groups and disability advocates on the effort to broaden the ADA’s coverage and removes or softens various of the more over-reaching elements of the original bill, including for example, putting the burden of proof on employers in disability cases -- unlike all other discrimination statutes.

Key Amendments to the ADA in H.R. 3195 would:

  • Override the Supreme Court decision in Sutton v. United Airlines. The bill reverses Sutton so that the determination of whether an impairment substantially limits a major life activity will be made without regard to the ameliorative effects of mitigating measures like medications, assistive technology, auxiliary devices, learned behavior or adaptive neurological modifications except for vision corrections or improvements from "ordinary eyeglasses or contact lenses."
  • Override the Supreme Court decision in Toyota Motor Mfg. v. Williams. The bill reverses Toyota’s holding that the ADA be interpreted "strictly to create a demanding standard for qualifying as disabled." The bill tempers the requirement that a disability "substantially limits" one or more major life activities to mean an impairment "materially restricts" a major life activity.
  • Provide that to "achieve [the Restoration Act’s] remedial purposes" and override various decisions such as Toyota, the definition of disability "shall be construed broadly" by the courts.
  • Rewrite the definition of a disability to state that an impairment that is episodic or in remission is still a covered disability if it would substantially limit a major life activity when active.
  • Redefine major life activities to include "major bodily functions" including "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions" as well as thinking and concentration.
  • Circumscribe slightly the "regarded as" prong of the definition of disability. While an individual regarded as having a disability is generally protected, the "regarded as" prong will not apply to a minor condition or one that is a "transitory" condition which is defined as a condition lasting or expected to last six months or less.
  • Become effective January 1, 2009, if passed by the Senate and signed by the President.

What the Bill Means to Employers

If passed, the Act would shift the analysis of many situations from defining disability to addressing possible accommodation needs. For example, unlike under current ADA precedents, employers will need to consider individuals with conditions controlled by medication or other mitigating measures as having ADA disabilities. This will require employers to consider accommodation requests from such individuals and to engage in the interactive process of discussion about a request. Passage of the Act will likely make comprehensive return-to-work programs more important for employers. Employers should begin to consider harmonizing their return-to-work procedures and their reasonable accommodation process as employees will be more likely to come under both. Employers may also want to consider if the expanded definition of disability and major life activities will require changes to other employer policies, procedures and benefits. This could for example, necessitate additional accommodations in recruitment and training processes. More questions are sure to arise if the Act is passed.