Court Finds Non-Disabled Employee May Bring an ADA Claim Based on an Improper Medical Inquiry


by Steve Bogue

Bogue, A. Stevenson
sbogue@mcgrathnorth.com
(402) 341-3070

Under the American with Disabilities Act (ADA), an employer generally may not make a pre-employment medical inquiry to an applicant. The Eleventh Circuit Court of Appeals, however, recently considered the issue of whether an employee who is not disabled may bring a lawsuit against an employer based on an improper medical inquiry. The Court concluded that such a lawsuit was permissible.

The Plaintiff in Harrison v. Benchmark Electronics had been employed by the company as a temporary employee. He had been invited to apply for a full time position. In the course of that application, he was asked to take a drug test, which is permissible under the ADA. He tested positive, which he explained by providing a prescription for the drug. His supervisor allegedly questioned him further about the drug, and the employee’s medical condition.

Subsequently, the decision was made not to extend him a full time job offer, and he was told that he could not return to his temporary job duties because he had performance and attitude problems. He was fired.

Harrison sued, claiming that he had a perceived disability, and that he had been given improper pre-employment inquiries. The trial court dismissed both causes.

On appeal, the court considered the issue of whether an employee who was not disabled could pursue a private cause of action for a prohibited medical inquiry. In the course of its inquiry, the court noted that the ADA makes it illegal for the covered employer to discriminate against a qualified individual with a disability, and restricts the employer’s ability to make inquiries that relate to an applicant’s disability status. It noted that in the pre-employment offer stage, such as in this case, an employer may inquire into the ability of an applicant to perform job related functions.  An employer may not conduct a medical examination or make inquires as to whether the applicant is an individual with a disability or the nature or severity of such disability.

The court noted that while disability discrimination involves qualified individuals with disabilities, the section of the law precluding improper pre-offer inquiry refers broadly to “applicants,” not “disabled applicants.”

The court then joined five other Circuit Courts of Appeal which had already found that a private cause of action could be maintained by a non-disabled employee.

Turning, then, to the merits of the lawsuit, the Court noted that there was a general exemption from the prohibition of pre-employment medical inquiries for a drug test, and that employers may ask follow up questions concerning the drug test. It sent the issue back to the trial court to determine whether the company’s follow up questions exceeded permissible limits on those questions.

The holding in Harrison underscores the necessity for employers to develop an interview procedure which would restrict the pre-job offer medical inquiries made to employees, and additionally, when a drug test is administered in the pre-offer stage, to limit the follow up questions so as not to require an employee to divulge the fact that he or she suffered from a disability. There should be no inquiries which could be construed as likely to elicit information about the applicant’s disabilities. An improper question, by itself, will be a sufficient basis for a lawsuit by an applicant against an offending employer.

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