Non-Disabled Employee Permitted to Make ADA Claim
Both state and federal laws prohibit discrimination on the basis of disability. Those laws also preclude certain types of inquiries regarding disabilities. Under federal law, The Americans with Disabilities Act (“ADA”) makes it illegal for an employer to discriminate against disabled individuals. The ADA also provides that, prior to an actual offer of employment, an employer “shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.”
A recent appellate division which does not control courts in California is nevertheless significant because it may serve as a frame of reference for our courts. The 11th U.S. Circuit Court of Appeals recently found that a non-disabled employee can sue an employer for prohibited medical inquiry under the ADA. Harrison v. Benchmark Electronics Huntsville, Inc., 11th Cir., No. 08-16656, Jan. 11, 2010.
In this case a temporary employee with Benchmark Electronics Huntsville, Inc. (BEHI) was hired in 2005 to repair and test electronic boards. At that time, if a BEHI supervisor believed that a temporary employee might be valuable as a regular or permanent employee, the supervisor would invite that individual to submit an application for permanent employment, which required undergoing a drug test and background screening.
In May 2005, Harrison submitted an employment application to BEHI at the suggestion of his supervisor, and underwent the required drug screening and background check. At that point, Harrison was an employee in good standing as far as he knew. He had never been informed of any problems with his performance. Harrison’s drug screening came back positive which, under BEHI’s policy, required review by a Medical Review Officer (MRO). Harrison’s supervisor was contacted by the company’s Human Resources department and asked to send Harrison to the department. Human Resources did not tell the supervisor about the positive drug test. However, the supervisor discovered the results of the test on his own and told Harrison that the test had come back positive for barbiturates. Harrison replied that he had a prescription for the drug. The supervisor then called Human Resources, passed the phone to Harrison and remained in the room while Harrison answered a series of questions, Harrison explained that he had been diagnosed with epilepsy at age two, and took barbiturates to control the effects of that disease.
Shortly afterward, Harrison was told that his drug test had cleared. However, the supervisor then told Human Resources not to give Harrison and offer letter. He also asked the temporary agency who had been sending Harrison to BEHI not to send him because Harrison and performance and attitude problems. Harrison was then fired by the agency.
Harrison filed a lawsuit against BEHI under the ADA, alleging that the company had engaged in improper medical inquiry. The issue before the court of appeal was whether a non-disabled individual can state a private cause of action for a prohibited medical inquiry under the ADA. The Equal Employment Opportunity Commission (“EEOC”) had previously determined that Harrison’s epilepsy did not rise to the level of “disability” under the ADA. Although the 11th Circuit had not previously addressed that issue, it held – consistently with sister circuits which have specifically addressed that question – that the ADA precludes inquiries with respect to any applicant who has not yet received a job offer, whether or not the individual is disabled under the ADA.
The ADA specifically permits pre-employment drug tests (“a test to determine the illegal use of drugs shall not be considered a medical examination”), and allows an employer to validate the test results by asking about lawful drug use or possible explanations for the positive result other than illegal use of drugs. However, as this case makes clear, disability-related questions are prohibited. In fact, the Court in this case quotes the legislative history of the ADA to point out that the drug-test exemption “should not conflict with the right of individuals who take drugs under medical supervision not to disclose their medical condition before a conditional offer of employment has been given.”
The moral of the story is that while an employer may question an applicant with follow-up questions in response to a positive drug test, there are specific limitations on the types of information that can be elicited. In addition, it is likely that the way in which the questioning of Harrison was handled by the supervisor was a factor in the court's determination of impropriety. Careful handling of all disability issues is of critical importance to all California employers.
