Can Employees Raise Claims Under ADA If They Are Not Disabled?

From Volume 11, Issue 1 of BCInsights

Authored By: Heather Kim

With recent changes to the Americans with Disabilities Act (ADA), disability discrimination claims are being filed with increasing frequency. As the courts are working through these claims, they are awarding higher damages than previous years to cases they find to have merit. In 2010, 25,165 claims were filed with the EEOC, which is up from 21,451 in 2009. Additionally, the EEOC recovered $76.1 million in monetary benefits, which is up from $67.8 million in 2009.¹

In spite of the trend of increasing claims, a recent disability discrimination case appears to have limited the criteria of which employees could pursue disability claims pursuant to the ADA’s guidance on impermissible medical testing. The following case reached the Sixth U.S. Circuit Court of Appeals, which was tasked with determining whether or not individuals without disability could pursue disability discrimination claims.² 

Dura Automotive Systems, Inc. (Dura) is a glass window manufacturing facility in Lawrenceburg, Tennessee. When the organization began to notice a higher rate of workplace accidents compared to similar plants, Dura considered the possibility that employees were engaging in substance abuse in the workplace. To combat this safety issue, the company implemented a policy that prohibited the use of legal prescription drugs if such use would adversely affect safety, company property, or job performance. In conjunction with an independent drug testing company, Dura created a policy that would “screen” employees for substances they believed could be dangerous in the workplace. Specifically the drug test would screen for 12 substances including some commonly found in legal prescription drugs such as Xanax, Lortab and Oxycodone. 

Per Dura’s policy, if an employee tested positive for any of the 12 substances, they would be suspended. The employee could explain the positive test result to the doctor, provide relevant medical paperwork, and provide a list of all prescription drugs to Dura. Dura would suspend the employee for 30 days while the employee switched to a “less risky” prescription medication or stopped using the prohibited substance. After thirty days, the employee would re-take the drug test, and either return to work or be terminated following a second positive test. 

Seven former employees of Dura, who held a variety of jobs within the plant, initially tested positive for prescription drug use. They worked with their doctors, who provided letters stating that their prescription drugs would not affect work performance. In spite of the letter and per Dura’s policy, they were suspended for the initial thirty days. However, the employees were then terminated after failing a second drug test. The employees sued Dura claiming that their drug testing policy violated the Americans with Disabilities Act (ADA). Specifically, they claimed that the drug testing was an “impermissible medical examination.” They argued that the workplace drug testing policy was illegal because it screens for substances found in legal prescription drugs. Additionally, it has the potential of identifying and screening out individuals with a disability.

The district court determined that it would analyze the employees claim that the drug testing was an “impermissible medical examination” under a specific section of the ADA.³  This section notes that a “qualified individual with a disability” cannot be discriminated against “because of the disability.” The section also defines “discriminate” behavior to include using employment tests which “tend to screen out an individual with a disability” unless the use of such tests is “job-related” and is “consistent with business necessity.”

The district court determined that six of the seven employees were not disabled per the ADA because they could not prove their aliments substantially limited a life activity, specifically their ability to work. The seventh employee was found to qualify as disabled as the employee had a “record of disability” because she had previously been unable to work due to an existing medical condition. However, as she was not currently experiencing symptoms of the condition, it was noted that she was not presently considered “disabled.” Throughout the course of this case, Dura requested that the court determine if an employee without a disability could pursue claims under this section of the ADA. The district court ruled that individuals did not need to be disabled to pursue a disability claim, but certified the issue for appeal. The U.S. Court of Appeals for the Sixth Circuit scrutinized the language and held that in order to pursue a disability claim under this section of the Act, the individuals in question must be disabled, which reversed the decision of the district court. 

While the Sixth U.S. Circuit Court of Appeals determined that section 12112(b)(6) specifically refers to “an individual with a disability,” the case was tried under the original ADA definition of disability. Therefore, the Dura case outcome is of limited use regarding potential future outcomes. The ADA Amendments Act has substantially broadened the definition of disability, and calls into question if the Sixth Court’s reasoning would have been applied in a similar fashion. Regardless of ADA status, the real issue that remains is whether the drug test put in place is job-related and consistent with business necessity.

1. These figures do not include benefits obtained through litigation: http://www.eeoc.gov/eeoc/statistics/enforcement/ada-charges.cfm
2. Bates v Dura Automotive Systems, Inc.
3. 42 U.S.C. § 12112(b)(6)

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Click here to read the next article in Volume 11, Issue 1 of BCInsights, "The Importance of Policy and Procedure: A Case Study".