Not all of the protections under the Americans with Disabilities Act are limited to disabled persons. The AD also protects employees from undergoing unconsented medical exams, unless the employer can show that the exam is job-related and consistent with business necessity (42 U.S.C. § 12112(d)(4)(A)). In this Eleventh Circuit case, the panel holds that an employee does not need to be disabled to have standing to bring suit under this section. The panel, nonetheless, affirms summary judgment for the employer, finding that it made out its job-related/business-necessity defense as a matter of law.
Owusu-Ansah v. The Coca-Cola Co., No. 11-13663 (11th Cir. May 8, 2013): The employee served as a quality assurance specialist, supervising call-center employees. In a conference with his manager in 2007, he disclosed (allegedly for the first time) that he had been the subject of racial and national origin workplace harassment for a multi-year period. According to the opinion, the manager “observed that Mr. Owusu-Ansah became agitated during the meeting, banged his hand on the table where they sat, and said that someone was ‘going to pay for this.’ “
(The employee denied this account. But in what turned out to be a serious procedural default below, the plaintiff reportedly did not object to the magistrate judge’s recitation of the evidence for Rule 56 purposes when he appealed to the district court, meaning that the facts as the magistrate judge found them stood. Thus, the facts are so reported here.)
Worried that the employee’s agitation might escalate to something more serious, the company directed Owusu-Ansah to speak with Dr. McElhaney, “an independent consulting psychologist who specialized in crisis management and threat assessment.” The doctor reported back to the company that there was a “strong possibility that he was delusional,” and recommended “that he be placed on paid leave to allow for further evaluation.”
Owusu-Ansah allegedly declined to cooperate with the follow-up evaluation, leading to the company sending a letter informing him that as a condition to his continued employment, he was to “complete an evaluation to identify whether there were any issues that could represent a risk to the safety of others in the workplace.” Failure to do so, he was warned, would be treated as a resignation. The employee eventually agreed to undergo a personality test, the Minnesota Multiphasic Personality Inventory (MMPI). After further evaluation, he was cleared to return to work.
The employee sued under the ADA, § 12112(d)(4)(A), which provides that:
“[a] covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”
The Eleventh Circuit panel holds, consistent with other circuits, that this section does not require proof that the employee was disabled.
“Unlike other provisions of the ADA, § 12112(d)(4)(A) does not refer to a ‘qualified individual’ – a person who ‘can perform the essential functions of the job’ he or she holds or desires ‘with or without reasonable accommodation,’ 42 U.S.C. § 12111(8) – but rather to an ’employee.’ “
Nevertheless, the panel finds that the employer met its burden of establishing a valid reason for the examination. The panel cited prior case authority involving peace officers who were required to submit to mental examinations. While recognizing that police armed with guns are different from call-center executives, the panel agreed that the employer had enough cause for concern to escalate the examination.
“Although Coca-Colapparently never asked Mr. Owusu-Ansah for his version of what happened at the meeting, it did not rely solely on [the manager’s] account in ordering the evaluation. Coca-Cola knew that Mr. Owusu-Ansah had refused to speak to [company agents] about his workplace problems. In addition, Dr. McElhaney – the consulting psychologist – expressed ‘significant concerns’ to Coca-Colabout Mr. Owusu-Ansah’s emotional and psychological stability, and recommended a psychiatric/psychological fitness-for-duty evaluation.”
The examination was thus job-related (concerning performance of his supervisory role). Moreover, the exam adhered to “business necessity,” owing to the need for plant safety:
“Though it may not be one of the traditional canons of statutory construction, common sense is not irrelevant in construing statutes, and in our view an employer can lawfully require a psychiatric/psychological fitness-for-duty evaluation under § 12112(d)(4)(A) if it has information suggesting that an employee is unstable and may pose a danger to others.”
The panel rejected the argument that the employer, under an EEOC Guidance on medical examinations, had to prove that the employee presented a “direct threat.”
“Significantly, ¶ 5 of the EEOC’s enforcement guidance is worded disjunctively, so that a ‘direct threat’ is required only if the employer does not have objective evidence that a medical condition will impair an employee’s ability to perform an essential job function. Here, as we have explained, Coca-Cola had objective evidence – e.g., the concerns of [the manager] and the observations and recommendations of Dr. McElhaney – that Mr. Owusu-Ansah was under emotional distress and was exhibiting signs of mental instability.”