Monday, January 25, 2010

Eleventh Circuit Recognizes Private Right of Action for Improper Medical Inquiry under ADA

ScalesThe Eleventh Circuit reversed a grant of summary judgment in favor of an employer earlier this month and joined the Second, Seventh, Eighth, Ninth, and Tenth Circuits in holding that the ADA creates a private cause of action to sue an employer for damages related to a prohibited medical inquiry. This cause of action does not depend on whether the plaintiff is a qualified individual with a disability, as that was defined either before the recent ADA Amendments or currently.

The case is Harrison v. Benchmark Electronics Huntsville, Inc, and stems from a decision not to hire a temp worker permanently. The employer frequently hired temp workers as permanent workers, and asked that they undergo drug testing and a background check. Harrison's supervisor submitted Harrison's application and a requisition for a position for him, along with requisitions for two other positions. The supervisor indicated that Harrison was the only person that he was interested in employing. Harrison passed the background check, and the drug test showed the presence of barbiturates, which Harrison takes to control epilepsy.

Somehow, the supervisor found out about the positive drug test and told Harrison about it. Harrison said he had a prescription, and the supervisor asked him to get it. Then the supervisor called a medical review officer who would decide whether the results of the test were acceptable, and handed the phone to Harrison. The supervisor stayed in the room while the medical review officer asked Harrison about the medication and his disability.

The medical review officer cleared Harrison to be hired, and the supervisor was told this and given clearance to hire him, but the supervisor asked that an offer letter not be prepared. He also asked the temp agency not to send Harrison back. The supervisor subsequently offered three separate reasons that Harrison wasn't hired.

The court first held that the ADA contained a private right of action for damages for improper medical inquiries, and that the cause of action did not depend on a person's disability status. The EEOC had found that Harrison was not disabled, presumably following Sutton, because his epilepsy was controlled by medication.

Given the availability of the cause of action, the court found that Harrison had enough evidence to get to a jury. A jury could find that the discussion that the supervisor was privy too went beyond the narrow area that the ADA allows inquiry into and that this was an inappropriate medical inquiry about Harrison's disability. A reasonable jury could also find that the reason's offered by the supervisor were not the real reasons for his decision--there were both problems with the employer's evidence and affirmative evidence provided by Harrison that cast the supervisor's assertions in doubt. And finally, there was evidence of damages to Harrison--he wasn't hired. Accordingly the court reversed and remanded the case to the trial court.

The vitality of the cause of action for an improper medical inquiry is likely to be less as we get farther away from the effective date of the ADA amendments. Here, the plaintiff would not have needed to use that theory under current law because his epilepsy would be considered a disability, and action taken based on it or the treatment for it would likely violate the ADA. It will still have vitality, though where an employer requires an employee to undergo a procedure or take some kind of test that doesn't test job skills and that they wouldn't have to otherwise.


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