593 F.3d 1206
U.S. Court of Appeals, Eleventh Circuit
January 11, 2010
Keywords: employment, legal concepts , medical inquiry, non-disabled, private right of action
Facts of the Case
In November of 2005, Aerotek, a company that assigns temporary workers to work at Benchmark Electronics Huntsville, Inc. (BEHI), assigned John Harrison to work at BEHI as a debug tech. At the time BEHI had a practice of screening temporary employees for potential permanent employment. If a supervisor believed that a temporary employee would meet BEHI’s needs, he would invite that employee to submit an application for employment and complete the necessary drug testing and background check.
On May 19, 2006, Harrison submitted an application for permanent employment, at the request of his supervisor, Don Anthony. Along with his application, he consented to a drug test. In July 2006, Anthony called the director of BEHI’s human services department to get the requisitions for three permanent positions. He identified Harrison as the only person he was interested in employing. After corporate approved Anthony’s requisitions, he asked Harrison to take the drug test. Harrison was at no time informed that his performance was deficient or that he had an attitude problem.
In July, 2006 BEHI’s human resources department was notified that Harrison’s drug test came back positive and was awaiting review by a Medical Review Officer (MRO). Anthony was notified to send Harrison to the human resources department, but was not told by human resources that Harrison’s drug test was positive. However, Anthony discovered the results of Harrison’s drug test and informed Harrison of the positive results. Harrison responded by noting he takes a prescription medication. Anthony then called the MRO and passed the phone to Harrison, who answered a series of questions about the medication. The MRO asked him how long he had been disabled, what medication he took, and how long he had taken it. Harrison told the MRO that he had epilepsy and he took the barbiturates to control it. Anthony remained in the room during Harrison’s call with the MRO and heard his responses to the questions.
Later in July, the human resources department was informed that Harrison’s drug test had been cleared and that he was cleared for hire, which Anthony was made aware of. However, Anthony told human resources not to prepare an offer letter for Harrison and asked Aerotek not to return Harrison to BEHI. In August of 2006, Aerotek informed Harrison that he would not be returning to BEHI, because he had a performance and attitude problem, and because he had been accused of threatening Anthony. Harrison was then fired from Aerotek.
On September 26, 2006, Harrison filed a complaint with the EEOC alleging various violations of the ADA. The ADA regulations in effect at the time required that the effect of mitigating measures, such as medication, be considered when determining whether the person was substantially limited in a major life activity and thus qualified as a person with a disability as defined under the ADA. The EEOC determined that he did not have an ADA-defined disability, and it did not investigate an improper medical inquiry claim. The EEOC dismissed his claim and gave notice of his right to sue under the ADA on February 7, 2007.
Issues of the Case
- Whether a non-disabled individual can state a private cause of action for a prohibited medical inquiry in violation of ADA Title I.
- Whether the plaintiff made out a prima facie case sufficient to withstand a motion for summary judgment for an improper medical inquiry.
- Whether the plaintiff suffered damages in order to establish a prima facie case sufficient to withstand a motion for summary judgment.
Arguments & Analysis
1. Recognition of a Private Right of Action for an Improper Medical Inquiry
Under the ADA, §12112(d) restricts an employer’s ability to make medical inquiries to determine an applicant’s disability status. Before an offer of employment is given the employer can only inquire into the applicant’s ability to perform job-related tasks. There is however an exemption for drug tests and employers may ask follow-up questions in response to a positive drug test.
Prior to this case, the Eleventh Circuit had not recognized a private right of action by a non-disabled individual for an improper medical inquiry. On appeal to the Eleventh Circuit, the plaintiff urged the court to follow its sister circuits in their unanimous recognition of a private right of action regardless of whether the plaintiff has a disability. The court determined that a plaintiff does have the right to bring a prohibited medical inquiry claim under the ADA, whether or not disabled, by interpreting the plain language of §12112(d) and examining the legislative intent in enacting the provision.
The court noted that a contrary reading would go against clear evidence of legislative intent. In enacting §12112(d), Congress sought to prevent employers from using pre-employment medical inquiries to exclude applicants with disabilities (particularly those with hidden disabilities such as epilepsy) before their ability to perform the job was evaluated. The legislative history of §12112(d)(2) indicates that Congress wished to prevent all questioning that would serve to identify and exclude persons with disabilities from consideration for employment. Additionally, the court concluded that allowing non-disabled applicants to sue will enhance and enforce Congress’s prohibition.
2. Improper Medical or Disability-Related Inquiry under the ADA
Under the ADA Title I regulations adopted by the EEOC, an employer may inquire into an applicant’s ability to perform job-related tasks, but may not make targeted disability-related inquiries. The EEOC defines disability-related inquires as those “likely to elicit information about a disability.” To establish a prima facie case under the ADA, a non-disabled plaintiff must show (1) an improper medical inquiry was made likely to elicit information about a disability; and (2) some damages (emotional, pecuniary, or otherwise) were caused by the inquiry or resulting from how the information was used.
The plaintiff argued that he had made out a prima facie case for an improper medical inquiry by BEHI. The court reasoned that 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. Further, the court determined that a reasonable jury could infer that Harrison was not hired because of his response to allegedly unlawful questions, and that Anthony based his decision not to hire Harrison on information gleaned from improper medical inquiries.
3. Evidence of Damages
The defendant argued that, even assuming an improper medical inquiry, the plaintiff could not provide evidence of damages sufficient to overcome summary judgment. The court agrees with its sister circuits in requiring that a non-disabled plaintiff at least show some damages (emotional, pecuniary, or otherwise) caused by a §12112(d) violation. The court rejected the defendant’s argument. It reasoned that the plaintiff presented sufficient evidence for a reasonable jury to find that he suffered damages, namely, that he was not hired as a permanent employee of BEHI because of his responses to allegedly unlawful questions.
- The court held that an employee can bring a prohibited medical inquiry claim under the ADA, even if not disabled.
- Harrison was able to make out a prima facie case of an improper medical inquiry.
- Harrison showed that he suffered damages, as required to establish his prima facie case.
Policy & Practice
Private Right of Action for Prohibited Medical Inquiry when Non-disabled
In Harrison, the issue of allowing a non-disabled individual to bring an action for a prohibited medical inquiry under the ADA is one of first impression for the Eleventh Circuit. However, the Eleventh Circuit remains consistent with other circuits in determining that an individual without a disability can bring a claim for a prohibited medical inquiry under the ADA. For instance, in Griffin v. Steeltek (1998), the Tenth Circuit determined that §12112(d) explicitly prohibits employers from making disability-related inquiries of employees, unless the inquiry is job-related or consistent with business necessity. The Griffin court determined that the provision applied to all employees and was not limited to qualified individuals with disabilities. This decision becomes precedent in Alabama, Georgia and Florida (Eleventh Circuit).
- 11th Circuit Court – Harrison v. BEHI
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