The Eleventh Circuit reverses summary judgment in a pre-employment medical inquiry case (42 U.S.C. § 12112(d)(2)), holding — in matters of first impression for that court — that this section is enforceable by a private right of action, that a plaintiff must present evidence of injury or loss, and that the pleading requirements for such a claim are modest. The case also demonstrates how an employer may get in trouble by asking one-too-many pesky questions about a positive blood test.
Harrison v. Benchmark Electronics Huntsville, Inc. (BEHI), No. 08-16656 (11th Cir. Jan. 11, 2010): The plaintiff was a temporary employee who sought to be hired permanently by BEHI. In the course of the hiring process, he submitted a blood test that came out positive. (Plaintiff has epilepsy and treats it with barbituates.)
The problem in this scenario was neither the drug test itself (42 U.S.C. § 12114: “[f]or purposes of this subchapter, a test to determine the illegal use of drugs shall not be considered a medical examination”), nor the asking of follow-up questions (29 C.F.R. § 1630.3(a)). It was that the Medical Review Officer took the opportunity to ask addition al questions remote from the results of the blood test: “The MRO asked him how long he had been disabled, what medication he took, and how long he had taken it. He replied that he had epilepsy since he was two years old, he took barbiturates to control it, and he stated the amount of his dosage.” The inquiry took place before the employee’s supervisor. Thereafter, the employee was denied the job.
Although the employee’s regarded-as-disabled claims fell to the wayside, the Eleventh Circuit holds on appeal that the medical inquiry claim ought to be tried. The panel first holds — citing the law of five circuits, the language and legislative history of the Act and the EEOC’s guidance on the issue — that the employer can be sued for violation of this section.
Second, it reverses the district court’s decision that the plaintiff failed to plead the claim: “Harrison satisfied our liberal pleading standard. His complaint alleged that BEHI questioned him about his seizures following a pre-employment drug test, and he claimed damages for these allegedly prohibited medical inquiries. Thus, BEHI had fair notice that Harrison sought relief under § 12112(d)(2), and his allegations, which specifically referred to pre-employment medical inquiries, were more than speculative.”
Third, it holds that the plaintiff demonstrated that he suffered an injury from the pre-hiring inquiry, i.e., “Harrison has 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.”
Finally, it holds that the plaintiff presented a genuine issue of material fact about whether the employer exceeded the permissible bounds of inquiring about a positive drug test:
“While the district court correctly concluded that employers may conduct follow-up questioning in response to a positive drug test, it failed to acknowledge any limits on this type of questioning. Since the district court did not recognize that § 12112(d)(2) prohibits disability-related inquiries, it found that the facts supported summary judgment. Harrison testified that Anthony told him his drug test was positive, that he disclosed his prescription, that he was then taken to Anthony’s office where he answered questions about his medication, and that Anthony remained in the room during this interview. Anthony denied ever knowing that Harrison suffered from epilepsy, and he acknowledged that it would be improper for him to be present during the MRO interview. Although BEHI was permitted to ask follow-up questions to ensure that Harrison’s positive drug test was due to a lawful prescription, a jury may find that these questions exceeded the scope of the likely-to-elicit standard, and that Anthony’s presence in the room violated the ADA, especially considering the conflict between Harrison’s testimony-that to answer the MRO’s questions he was forced to disclose the fact and extent of his epilepsy-and Anthony’s-that he never knew Harrison suffered from the condition. 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. On summary judgment we must give Harrison the benefit of that inference.”
So a jury conceivably gets to decide whether the employer’s questions were too prying. Excellent!