Thursday, November 4, 2010

6th Circuit holds that an individual must be disabled to challenge a selection criteria under the ADA (but does it matter?)

Employee use of prescription drugs has been in the news lately. Last week, the New York Times ran a piece discussing the drug testing of employees for prescription medications. The article discussed Dura Automotive Systems, which, over concerns about drug use and worker safety, hired an independent company to administer random drug tests of its employes. It chose to screen for 12 types of drugs, including hydrocodone and oxycodone. Seven Dura employees tested positive for lawful prescription medications and sued following their terminations.

Yesterday, in Bates v. Dura Automotive Systems, Inc. (6th Cir. 11/3/10) [pdf], the 6th Circuit dismissed the claims of any of the plaintiffs who are not disabled under the ADA.

Section 12112(b)(6) of the ADA prohibits discrimination based on qualification standards, employment tests or other selection criteria. It provides:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual [by] using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.

The 6th Circuit concluded that the plain language of the statute barred non-disabled employees from pursuing a claim:

Although non-disabled individuals may bring claims under some provisions of the Act, the plain text of subsection (b)(6) only covers individuals with disabilities. The text of subsection (a) and (b)(6) specifically refers to “qualified individual[s] with disabilit[ies],” and not … a broader class of individuals such as “employees.” … A straightforward reading of this statute compels the conclusion that only a “qualified individual with a disability” is protected from the prohibited form of discrimination described in subsection (b)(6)…. Although other sections of the Act apply to non-disabled individuals, the Act’s primary purpose is to prevent discrimination against disabled individuals…. Interpreting subsection (b)(6) as being limited to individuals with disabilities better gives effect to Congress’s decision not to use the word “employees” in this subsection.

This case may end up being much ado about nothing. Because terminations occurred before Jan. 1, 2009, the 6th Circuit decided this case under the pre-amendment ADA, which had a might tighter definition of “disability.” As I have previously discussed, the ADA Amendments Act expands the definition of “disability” so broadly that virtually every employee with a medical condition could be considered “disabled.” Therefore, future drug testing cases likely will not be decided on the issue of whether the tested employees were “disabled.” Instead, courts will decide future cases on whether the drug testing was job related and consistent with business necessity—an affirmative defense under the ADA. For this reason, it is important for businesses to contemporaneously document the job nexus and business need for all employee drug testing.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or