Sixth Circuit Court of Appeals
767 F.3d 566
August 26, 2014
Keywords: disability inquiry, medical test, ADA
Dura fired and suspended several employees who received positive test results from Dura’s drug testing program. Some of the employees, however, were positive for legal, prescription, drugs. They sued under the ADA, arguing that the test was a “medical examination” or “disability inquiry,” each of which the ADA prohibits.
The Sixth Circuit here held that the intent of the employer is a key inquiry to determine whether there was a medical examination. They also held that, in order for there to be a disability inquiry, the employer must deliberately elicit information about an employee’s disability. The Sixth Circuit ultimately held that, in this case, it was not clear that Dura was intentionally trying to learn about their employees’ disability, and the question should have been submitted to the jury at the trial level.
Facts of the Case
The seven plaintiffs in this case were employees at a manufacturing facility of the defendant, Dura Automotive (Lawrenceburg, Tennessee) that produced glass windows for motor vehicles. While at Dura, the plaintiffs performed many jobs, including the assembly of windows, quality control, and the driving of machinery.
Responding to rumors of widespread drug use, a high rate of accidents, and a specific accident where the injured employees tested positive for drugs, Dura set up a program to test for drug use, including legal prescription drugs. The testing program was implemented by Freedom From Self (FFS), a third party company Dura hired to administer and report the tests. Dura instituted the program in May 2007, testing all employees. Any positive test result meant an employee would be sent home indefinitely. After a positive result, the urine sample went to a doctor for confirmation. If the positive substance was a legal prescription drug, the employee would be contacted; and if the employee provided a medical explanation, the doctor would change the result to negative and contact Dura. Dura’s human resource manager then would suspend the employee for thirty days to transition to a less risky medication or stop prescription drug use altogether. Moreover, regardless of a change to negative, all employees that originally had a positive result were required by Dura to provide a list of all current prescription drugs to FFS and Dura. Any employee with a positive result could re-take the test after 30 days. A clean test would allow them to return to work, but a second positive test would result in automatic termination.
The plaintiffs in this case received an initial positive panel test based on legal prescription drug use. The doctor then negated the result, and provided documentation indicating that the identified prescription medications would not affect work performance. Nonetheless, the plaintiffs were suspended for 30-days based on a positive result in the initial panel test, or terminated after a second positive test. They brought suit in the U.S. District Court for the Middle District of Tennessee under the Americans with Disabilities Act (ADA), alleging that the initial panel test was an impermissible medical examination, but were unable demonstrate that they were qualified individuals with disabilities.
Their claim was classified by the District Court under Section 12112(b)(6) of the ADA, which protects qualified individuals with disabilities from discriminatory medical inquiries. However, that claim was ultimately dismissed, because protections under Section 12112(b)(6) can only be raised by people with a “qualifying disability.” When the case was sent back to the District Court, the plaintiffs were able to reclassify their claim under a different Section: Section 12112(d)(4)(A). This section prohibits employers from making disability inquiries or requiring medical examination, unless substantially “job related and consistent with business necessity.” And (d)(4)(A) applies to “any employee,” with or without a disability.
Before this trial, Dura moved for summary judgment, claiming that their conduct did not fit within the “regulated-conduct” (i.e., that the drug test was neither a “medical examination” nor a “disability inquiry”) prohibited by the statute. The District Court denied the motion, and instead decided the “regulated-conduct” issue in the Plaintiffs’ favor. After making these determinations, the District Court sent the case to a jury to determine if Dura had a “business justification” for their conduct, and if and what damages would be awarded. The jury ultimately decided for the Plaintiff, and awarded both compensatory and punitive damages. Dura has appealed from the jury’s verdict.
Issues of the Case
- Whether (b)(6) should properly govern Plaintiff’s claim?
- Whether the evidence supports the court’s “medical-examination” and “disability-inquiry” ruling? Or should the question have been presented to the jury?
Arguments & Analysis
1. Which Section of the ADA is Appropriate?
The Sixth Circuit ruled that while (b)(6) is limited to “qualified individuals,” (d)(4)(A) applies to “any employee” regardless of whether they have a disability. Therefore, it was correct for the District Court to allow the claim to proceed under (d)(4)(A).
2. Should the Medical Examination and Disability Inquiry issues have been submitted to the jury?
The Sixth Circuit inquired whether there is a reasonable dispute as to material facts, which would mean that the issue should have been submitted to the jury, rather than decided by the court as a ruling on a motion for summary judgment.
The ADA does not define what a “medical examination” or “disability inquiry” is. Generally, Congress intended the ADA to prevent employers from making attempts to identify and exclude people with disabilities from employment. The Court looked to the Equal Employment Opportunity Commission’s (EEOC) enforcement guidelines, which, although they are not necessarily binding on the court, do define the two terms in question.
A “Medical Examination” is defined as a procedure which seeks information about an individual’s physical or mental impairments or health. There are several factors which go into this determination. The most important factor, according to the Sixth Circuit here, is whether the test is designed (or intended) to reveal an impairment of physical or mental health. Other factors include: whether it was administered / interpreted by a healthcare professional, whether the test is invasive, and whether medical equipment was used. Although several factors make the testing look like it was a medical examination, the Sixth Circuit holds here that there is a genuine issue of fact as to whether the intent of Dura was to determine whether any of their employees had disabilities.
The Sixth Circuit reached the same conclusion on the issue of whether Dura conducted a “Disability Inquiry.” The EEOC specifies that disability inquiries “may” include asking about prescription drugs or medications, and monitoring use of prescription drugs, among other things. The court found it important here that the EEOC used “may” in their definition, and consequently found that this definition did not establish a categorical rule, but rather established a guideline to follow. The test the Sixth Circuit decided to apply was: whether the questioning was designed to (or likely to) elicit information about an employee’s disability. The Sixth Circuit held that it is reasonable to conclude that Dura designed their drug test to avoid gathering information about an employee’s disability. The court stressed that Dura used a third party to run the tests, and that the focus of the tests was on the effect that the drugs would have on the employees, not on the underlying reason the employees might be taking the medications. The court also found that Dura took deliberate steps to avoid eliciting disability information from their employees. Therefore, the Sixth Circuit held that there was a genuine dispute of material fact, regarding whether this was a “disability inquiry.”
The Sixth Circuit sent the case back to the District Court for a jury trial, consistent with the definitions provided above.
- The Court held that § 12112(d)(4)(A) was an appropriate section of the ADA to bring this case under.
- The Court held that the issue of whether the tests were “Medical Examinations” or “Disability Inquiries” should have been submitted to the jury
Policy & Practice
The Sixth Circuit’s decision here makes it clear that they look primarily towards the purpose of the testing program in order to determine whether it is a medical examination or disability inquiry. The factor given the most weight for the examination prong is whether the employer actually intended to learn the specifics of an employee’s disability; and the disability inquiry test looks primarily towards whether the employer is deliberately eliciting information about an employee’s disability. Ultimately, if the employer is not taking intentional steps to learn of their employee’s disability, it is unlikely for a test to be considered a medical examination or a disability inquiry.
These materials do not constitute legal advice and should not be relied upon in any individual case. Please consult an attorney licensed in your state for legal advice and/or representation. These materials were prepared by the legal research staff of the Burton Blatt Institute (BBI) at Syracuse University in partnership with the Southeast ADA Center to highlight legal and policy developments relevant to civil rights protections and the impact of court decisions in the Southeast Region under the Americans with Disabilities Act (ADA). These materials are based on federal disability rights laws and court decisions in effect at the time of publication. Federal and state disability rights law can change at any time. In addition, state and local laws and regulations may provide different or additional protections. Materials are intended solely as informal guidance, and are neither a determination of your legal rights nor responsibilities under the ADA or other federal, state, and local laws, nor binding on any agency with enforcement responsibility under the ADA. The accuracy of any information contained herein is not warranted. Any links to external websites are provided as a courtesy and are not intended to nor do they constitute an endorsement of the linked materials.