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Can Employees Raise Claims Under ADA if They Are Not Disabled
Can Employees Raise Claims Under ADA if They Are Not Disabled
Can Employees Raise Claims Under ADA if They Are Not Disabled
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Can Employees Raise Claims Under ADA if They Are Not Disabled


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  • 1. www.BusinessControls.comCan Employees Raise Claims Under ADA If They Are Not Disabled?With recent changes to the Americans with Disabilities Act (ADA), disabilitydiscrimination claims are being filed with increasing frequency. As the courts areworking through these claims, they are awarding higher damages than previousyears to cases they find to have merit. In 2010, 25,165 claims were filed withthe 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 2009.1In spite of the trend of increasing claims, a recent disability discrimination caseappears to have limited the criteria of which employees could pursue disabilityclaims pursuant to the ADA’s guidance on impermissible medical testing. Thefollowing case reached the Sixth U.S. Circuit Court of Appeals, which was taskedwith determining whether or not individuals without disability could pursuedisability discrimination claims.2Dura Automotive Systems, Inc. (Dura) is a glass window manufacturing facility inLawrenceburg, Tennessee. When the organization began to notice a higher rateof workplace accidents compared to similar plants, Dura considered thepossibility that employees were engaging in substance abuse in the workplace.To combat this safety issue, the company implemented a policy that prohibitedthe use of legal prescription drugs if such use would adversely affect safety,company property, or job performance. In conjunction with an independent drugtesting company, Dura created a policy that would “screen” employees forsubstances they believed could be dangerous in the workplace. Specifically thedrug test would screen for 12 substances including some commonly found inlegal 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 tothe doctor, provide relevant medical paperwork, and provide a list of allprescription drugs to Dura. Dura would suspend the employee for 30 days whilethe employee switched to a “less risky” prescription medication or stopped usingthe prohibited substance. After thirty days, the employee would re-take the drugtest, 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 workperformance. In spite of the letter and per Dura’s policy, they were suspended for 5995 Greenwood Plaza Boulevard, Suite 110 ● Greenwood Village, Colorado 80111 ● Office 303.526.7600 ● 800.650.7005 ● Fax 303.526.7757
  • 2. www.BusinessControls.comthe initial thirty days. However, the employees were then terminated after failinga second drug test. The employees sued Dura claiming that their drug testingpolicy violated the Americans with Disabilities Act (ADA). Specifically, theyclaimed that the drug testing was an “impermissible medical examination.” Theyargued that the workplace drug testing policy was illegal because it screens forsubstances found in legal prescription drugs. Additionally, it has the potential ofidentifying and screening out individuals with a disability.The district court determined that it would analyze the employees claim that thedrug testing was an “impermissible medical examination” under a specific sectionof the ADA.3 This section notes that a “qualified individual with a disability”cannot be discriminated against “because of the disability.” The section alsodefines “discriminate” behavior to include using employment tests which “tend toscreen 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 disabledper the ADA because they could not prove their aliments substantially limited alife activity, specifically their ability to work. The seventh employee was found toqualify as disabled as the employee had a “record of disability” because she hadpreviously been unable to work due to an existing medical condition. However,as she was not currently experiencing symptoms of the condition, it was notedthat she was not presently considered “disabled.” Throughout the course of thiscase, Dura requested that the court determine if an employee without a disabilitycould pursue claims under this section of the ADA. The district court ruled thatindividuals did not need to be disabled to pursue a disability claim, but certifiedthe issue for appeal. The U.S. Court of Appeals for the Sixth Circuit scrutinizedthe language and held that in order to pursue a disability claim under this sectionof the Act, the individuals in question must be disabled, which reversed thedecision 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 theoriginal ADA definition of disability. Therefore, the Dura case outcome is oflimited use regarding potential future outcomes. The ADA Amendments Act hassubstantially broadened the definition of disability, and calls into question if theSixth Court’s reasoning would have been applied in a similar fashion. Regardlessof ADA status, the real issue that remains is whether the drug test put in place isjob-related and consistent with business necessity. 5995 Greenwood Plaza Boulevard, Suite 110 ● Greenwood Village, Colorado 80111 ● Office 303.526.7600 ● 800.650.7005 ● Fax 303.526.7757
  • 3. 1. These figures do not include benefits obtained through litigation: 2. Bates v Dura Automotive Systems, Inc. 3. 42 U.S.C. § 12112(b)(6)TIP: Documentation in any investigation is critical to avoiding litigation.BCI delivers the two-day Process of Investigations™ training across the UnitedStates. To find a city near you, click here, or call 800.650.7005. 5995 Greenwood Plaza Boulevard, Suite 110 ● Greenwood Village, Colorado 80111 ● Office 303.526.7600 ● 800.650.7005 ● Fax 303.526.7757