11th CIRCUIT FINDS ADA PROHIBITION AGAINST IMPROPER PRE-OFFER MEDICAL INQUIRIES CREATES A CAUSE OF ACTION EVEN IF PLAINTIFF IS NOT DISABLED
This week, in Harrison v. Benchmark Electronics Huntsville, Inc., the 11th Circuit reversed the trial court's summary judgment in favor of Benchmark (BEHI), and remanded the case for a jury trial. Harrison was employed by Aerotek, a company that places temporary workers at BEHI. He worked as a "debug tech", dealing with electronic boards. Harrison suffered from epilepsy (since the age of 2) and took barbiturates to control his condition. BEHI had a practice of hiring temporary workers as permanent employees if a supervisor believed that they would meet BEHI's needs. Harrison submitted an application and took a pre-offer drug test, that was positive for barbiturates. Although the testimony was in dispute, the evidence most favorable to Harrison indicates that his supervisor, Anthony, found out about the positive drug test and confronted Harrison about it. Harrison provided a valid prescription, and Anthony called the MRO and passed the phone to Harrison and listened in as he answered questions from the MRO, including the fact that he took barbiturates due to his epilepsy. After this conversation was overheard by Anthony, Anthony told HR not to prepare an offer letter for Harrison. Anthony also advised Aerotek not to return Harrison to BEHI, and Aerotek complied, telling Harrison he had a performance and attitude problem and had been accused of threatening Anthony. Harrison was terminated by Aerotek.
Harrison filed a charge with EEOC, and the EEOC determined that he did not have a disability and thus did not investigate the improper medical inquiry claim. A right to sue letter was issued to Harrison, and he filed his suit. The court first examined whether Harrison, a "non-disabled individual", can state a private cause of action for a prohibited medical inquiry in violation of Section 12112(d). The court found that such a cause of action exists. The court further found that an employer may conduct follow-up questioning in response to a positive drug test, but these questions are limited by Section 12112(d)(2), which prohibits disability-related inquiries. "A reasonable jury could infer that Anthony'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".
Practice pointers. Although this case was decided under the ADA prior to the 2008 amendments, the logic is still applicable. Employers must limit their pre-offer inquiries, even with a positive drug test, to non-disability related questions. Of course, this is very difficult to do. Additionally, as I have often written, it is important to train supervisors as to what they can and cannot do in relation to the ADA (as well as other employment laws). The timing of Harrison's termination is certainly suspect.
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