Today, the Sixth Circuit issued a decision in Bates v. Dura Automotive Systems, Inc. that may appear to be of interest to employers who have or want to implement drug testing programs. Unfortunately, the decision is of limited use in predicting future outcomes because, among other things, it is extremely narrow and was decided without reference to the ADAAA, having arisen before the amendments took effect. Regardless, it is worth a look as it will be touted as a win for employers and some may be misled about its significance.
In Bates v. Dura Automotive Systems, Inc., the plaintiffs were seven former employees of a Tennessee manufacturing facility. They performed a variety of jobs at the facility but all failed a rather unique drug test. The Company was concerned over what it viewed as a higher than normal rate of accidents and suspected that drug use, legal and illegal, may have been the cause. To address safety concerns, the Company banned the use of several legal drugs that it believed had a negative impact on safety, company property or job performance. Working with an independent lab, the company screened employees for 12 substances, including those found in many legal prescription drugs, e.g. Xanax, Lotab, Oxycodone.
The plaintiffs all tested positive but all had legitimate prescriptions. The Company gave each employee the opportunity to transition to other drugs but refused to consider notes from the employees’ doctors indicating that the drugs would not impact their work performance. Eventually, the employees were terminated when they refused to stop taking the drugs. They sued the Company claiming that the drug test violated the ADA. The District Court concluded that 6 of the plaintiffs were not disabled and analyzed the test under section 12112(b)(6) of the ADA, which applies to qualifications standards, employment tests and other selection criteria. The District Court concluded that there was a question as to whether the test fell within the exception permitting testing that is job related and consistent with business necessity. More significantly, the District Court concluded that plaintiffs do not have to be disabled to pursue 12112(b)(6) claims. On appeal, the Sixth Circuit considered only the issue of whether plaintiffs have to be disabled to pursue 12112(b)(6) claims.
The Sixth Circuit began by reviewing the statutory language:
(a) General rule
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual . . . .
As used in subsection (a) of this section, the term "discriminate” includes . . .
(6) 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 . . . .
Based on the above language with its specific reference to “a qualified individual with a disability” in section (a), the Sixth Circuit concluded that subsection (b)(6) covers only individuals with disabilities. As a result, the Sixth Circuit reversed the District Court and directed it to dismiss the 12112(b)(6) claims of the non-disabled plaintiffs.
What does it mean for employers going forward? Let’s start by looking at the current language of the ADA as amended by the ADAAA (new language in bold) that was quoted by the Sixth Circuit:
(a) General rule
No covered entity shall discriminate against a qualified individual on the basis of disability ...
As used in subsection (a) of this section, the term “discriminate against a qualified individual on the basis of disability” includes
(6) 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 . . .
At the very least, the new ADAAA language muddies the waters and calls into question whether the Sixth Circuit’s reasoning in Bates v. Dura Automotive Systems would be applied again — we have moved from “a qualified individual with a disability” to only “a qualified individual.”
Perhaps more significantly, the Sixth Circuit declined to consider in Bates v. Dura Automotive Systems whether the Plaintiffs had properly asserted claims under section 12112(d)(4) challenging the drug test as an improper “medical examination or inquiry.” That section provides:
(d) Medical examinations and inquiries
(4) Examination and inquiry
(A) Prohibited examinations and inquiries
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.
Several circuits that have considered the issue have concluded that plaintiffs who are not disabled may assert claims under section 12112(d)(4). Thus, on the whole, the decision in Bates v. Dura Automotive Systems is extremely narrow and possibly obsolete. To the extent that there is hype about the decision, don’t believe it. At the end of the day, all this decision means is that the real issue in most cases will be whether the drug test put in place by the employer is job-related and consistent with business necessity.Questions or comments? You'll find a link to my email address at the CONTACT line below.
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