1. Our last newsle er included an ar cle on
this case involving a suit by former employ‐
ees of Dura Automo ve Systems, Inc.
("Dura"), at its Lawrenceburg, Tennessee
manufacturing facility. The case highlights
the pi alls inherent in drug tests for legally‐
prescribed drugs.
Here's a brief summary of the facts and the
result at the me we last reported. In 2007,
Dura banned certain prescrip on medica‐
ons, and it forced employees to undergo
mandatory drug tes ng. Ul mately, six of
the plain ffs were terminated because of
their use of legally prescribed medica ons.
Dura employed a two‐phased drug‐tes ng
protocol. It was designed to operate as fol‐
lows: First, Dura's independent drug tes ng
company—Freedom From Self (FFS) per‐
formed "instant panel" tests on urine sam‐
ples collected from Dura employees. Each of
the plain ff‐employees tested posi ve for
one of twelve prohibited substances. Based
on the instant‐panel test results, Dura sent
posi ve‐tes ng employees home. Posi ve
samples were sent for confirmatory tes ng
and employees were afforded the oppor‐
tunity to provide a medical review officer
(MRO) with a medical explana on for the
posi ve test results. If the MRO concluded
that the employee had a valid medical jus ‐
fica on, the MRO would change the final
test result to nega ve, send the final result
to FFS, and FFS would forward the final re‐
sult to Dura.
That tes ng protocol would have been ac‐
ceptable. But Dura altered the design. In‐
stead of credi ng the MRO's revisions, Dura
instructed posi ve‐tes ng employees to
bring their medica ons to FFS for documen‐
ta on. FFS then reported each employee's
machine‐restricted medica ons to Dura. In
each case, the individual had a legal pre‐
scrip on for a drug containing a banned
substance. Dura gave each employee an
opportunity to transi on to drugs without
the prohibited substances. Some of the ter‐
minated employees provided Dura with doc‐
tor's notes sta ng that the use of their pre‐
scrip on medica on did not affect their
work performance. But Dura disregarded
such notes. Eventually, Dura terminated the
employees when they con nued taking
medica on with the prohibited substances.
The terminated employees filed suit, alleg‐
ing a viola on of the Americans with Disabil‐
i es Act, 42 U.S.C. 12112(d)(4)(A), which
prohibits employers from requiring “medical
examina on[s]” or “mak[ing] inquiries of an
employee as to whether such employee is
an individual with a disability ... unless such
examina on or inquiry is shown to be job‐
related and consistent with business neces‐
sity.” A jury found for all but one plain ff.
Plain ff's offered a compelling argument
that, since Dura categorically disregarded
medical advice, its drug‐tes ng program was
designed to discover and then to discrimi‐
nate against employees with health condi‐
ons. The jury awarded damages (including
puni ve) of more than $870,000.
Dura appealed to the Sixth Circuit Court of
Appeals, which reversed and set the case for
a new trial. A er the 6th
Circuit remanded
the case to the United States District Court
for the Middle District of Tennessee, that
court set a trial date for June 2, 2015. The
court's docket shows that, on May 21, 2015,
the par es requested a con nuance of that
trial date, in light of se lement discus‐
sions. The next and last docket entry is for
June 9, 2015, indica ng a S pula on of Dis‐
missal was filed and the case was
closed. That indicates that the par es'
se lement discussions were successful.
There is no indica on of the se lement
terms. Normally, a confiden ality provision
would be part of the se lement.
Update—Bates v. Dura Automotive Systems, Inc.
(6th Cir. 2014)
Update—Bates v.
Dura Automotive Sys-
tems, Inc. (6th Cir.
2014)
1
Update—EEOC v.
Abercrombie & Fitch
Stores, Inc., 135 S.Ct.
2028 (2015)
2
United Steel Workers
Announces Settle-
ment with Indiana
University Health
2
“Peeing in Peace” 4
Inside this issue:
August 2015
Labor & Employment Alerts

2. court noted that, just as an employer cannot make an ad‐
verse employment decision because of an individual's reli‐
gion, it also cannot make such a decision in order to avoid a
prospec ve accommoda on. Actual no ce of the religious
accommoda on necessary is not required. But if the em‐
ployer at least "suspects" (as Abercrombie & Fitch did) that
the applicant may need an accommoda on, and rejects the
applicant accordingly, mo ve is established.
A er years of li ga ng and untold amounts paid in a or‐
neys' fees, the par es agreed to se le the dispute. Aber‐
crombie & Fitch agreed to pay Samantha Elauf $25,670 as
damages plus $18,983 in court costs. EEOC reports show
that A & F li gated its "look" policy previously against claims
by Muslim applicants and employees. For example, in 2013,
A & F se led two cases involving the same (or very similar)
issues as those before the Supreme Court. It appears that
those issues have finally been determined.
This is another case reported in our last newsle er. It in‐
volved a suit by the Equal Employment Opportunity Com‐
mission (EEOC) on behalf of Samantha Elauf, a Muslim who
rou nely wore a "hijab" or head scarf as part of her reli‐
gious observance. Although she never iden fied her religion
(Islam), or requested that she be allowed to wear the scarf
at work, Abercrombie & Fitch's defense of "no specific
knowledge" of her need for a religious accommoda on ul ‐
mately failed.
The U.S. Supreme Court was asked to decide whether an
employer could be liable under Title VII for refusing to hire
an applicant based on a religious observance, only if the
applicant provides actual, explicit no ce of the accommoda‐
on necessary. The Supreme Court held that "an employer
who acts with the mo ve of avoiding accommoda on may
violate Title VII even if he has no more than an unsubstan ‐
ated suspicion that accommoda on would be needed." The
Page 2
Labor & Employment Alerts
Update—EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028
(2015)
In January of this year, nurses Lacie Li le and Heather Bragg
began an effort to unionize the nurses at IU Health, Meth‐
odist, and Riley Hospital for Children. Li le and Bragg were
part of a group of 70 nurses interested in forming a union
with the help of the United Steel Workers (USW). Reports
indicate there are approximately 1,500 nurses at Methodist,
1,000 at Riley Hospital for Children, and 730 at IU Health's
University Hospital. The level of interest is unknown pres‐
ently, but the organizers were trying to get at least two‐
thirds of the nurses at each of IU Health’s three downtown
hospitals to sign a pe on in favor of organizing. All three
hospitals are located a short distance from each other, in
downtown Indianapolis.
According to Li le, Bragg, and the United Steel Workers, IU
took offense at the organizing effort, terminated Li le on
March 30th
, and engaged in undisclosed discipline and har‐
assment of Bragg. The USW filed an unfair labor prac ce
with the Na onal Labor Rela ons Board, alleging that IU
violated the Na onal Labor Rela ons Act by termina ng
Li le and disciplining Bragg.
As part of the se lement, IU Health will rescind its termina‐
on of Li le, which allegedly occurred because she was dis‐
tribu ng union vo ng cards to other nurses. Li le will be
reimbursed for the wages she lost since the termina on. IU
Health also agreed to revoke the undisclosed disciplinary
ac ons against Bragg, the other nurse leading the union
organiza on effort.
Li le provided a wri en statement as follows: "I am glad to
get this behind me. I will con nue to work with the United
Steelworkers to unionize the nurses at IU Health because I
believe when nurses have a say in their working condi ons,
care for pa ents improves. I got involved in this from the get
‐go because I love the terrific doctors and nurses and staff at
IU Health, and I want the best for all of the pa ents."
As reported by the United Steelworkers, IU Health agreed
to post official no ces as part of the se lement, aler ng
staff of their labor rights under federal law. That includes
statements by the hospital system that it will not punish
workers for suppor ng labor organiza on. The no ces will
include the statement: "We will not threaten you with chart
audits, harass you, or in midate you because you engage in
union ac vity or you choose to be represented by or support
a union."
Con nued on page 3
United Steel Workers Announces Settlement with Indiana
University Health

3. Page 3
Labor & Employment Alerts
United Steel Workers Announces… Continued from page 2
In documents filed with the NLRB, the USW claimed IU
Health’s managers in midated nurses, improperly ques‐
oned nurses about the union, enforced its disciplinary poli‐
cies inconsistently, maintained overly broad policies against
solicita on of union support, and created “an impression of
surveillance.”
IU Health provided the following statement:
"Resolu on of the union's charges does not mean IU Health
violated policies or acted unfairly or illegally in any way, and
in fact the se lement agreement specifically preserves the
posi on of IU Health that it did not violate the Na onal
Labor Rela ons Act. A se lement allows us to focus on the
important work of caring for pa ents and suppor ng the
team members who care for them, rather than prolonging
unnecessary, costly and distrac ng legal ma ers. We will
con nue to comply with the law, and respect employees'
right to engage in protected, concerted ac vi es under the
Na onal Labor Rela ons Act."
“Peeing in Peace”
The tle for this ar cle comes from the Transgender Law
Center, which has made available a publica on of the same
name for quite some me. (See "Peeing in Peace, A Re‐
source Guide for Transgender Ac vists and Allies";
transgenderlawcenter.org)
On June 1st
of this year, the Occupa onal Safety and Health
Administra on (OSHA) issued its own version under the
tle: "Guide to Restroom Access for Transgender Workers."
OSHA states that the guide was developed at the request of
the nonprofit Na onal Center for Transgender Equality to
provide guidance on best prac ces for restroom access for
transgender workers.
OSHA considers restroom access a health and safety issue,
and so it is. Further, OSHA claims that restric ng employ‐
ees to restrooms that are consistent with their biology, but
inconsistent with their gender iden ty, singles out
transgender employees and may make them fearful for
their physical safety. OSHA also takes the posi on that an
employer cannot force a transgender employee to use a
segregated facility, but it may offer segregated facili es as
an op on. And under the guide's suggested best prac ces,
OSHA recommends that employees should not be required
to provide any medical or legal documenta on of their gen‐
der iden ty in order to access "gender‐appropriate" facili‐
es.
An example of how these best prac ces might work in actu‐
ality comes from a Minnesota case of several years ago. At
a 2002 Bamberger firm seminar, the case of Cruzan v. Spe‐
cial School District # 1, 294 F.3d 981 (8th Cir. 2002) was not‐
ed during a presenta on of recent legal developments.
Briefly stated, the facts of Cruzan are that David Nielsen,
librarian at the Southwest High School in Minneapolis, Min‐
nesota, appeared at a faculty mee ng in a blue dress (this
was not his normal a re) and announced to the faculty
and administra on that he was now transgendered, he
preferred to be called Debra Davis, and he demanded ac‐
cess to the female restrooms.
As you might imagine, the prospect of a librarian who had
previously dressed as a male, iden fied himself as a male,
and admi ed to having the sex organs of a male, suddenly
switching his bathroom preference at the high school, was
not met with rousing support or approval among the fe‐
male faculty. The administra on, in a speedy show of tol‐
erance, quickly built not one but two unisex bathrooms,
but Nielsen refused to use them, saying it would be dis‐
criminatory.
The Minnesota Human Rights Act prohibited discrimina on
on the basis of a person's sexual “self‐image or iden ty not
tradi onally associated with one's biological maleness or
femaleness.” Minn. Stat. § 363.01. In other words, alt‐
hough Nielsen was biologically male and had no inten on
of having sex‐change surgery, since he thought of himself
as a female, he was en tled to be treated as one. In order
to comply, the administra on allowed Nielsen to use the
female facili es. (There is no indica on as to whether
Nielsen’s sexual thought process was uniform, or whether
he awoke some mornings in touch with his female side and
others in touch with his male side. It is certainly possible
that Nielsen wavered between the two and, accordingly, it
seems that he would have an argument that he should be
able to use the facili es corresponding to his iden ty at any
given moment.)
Con nued on page 4

4. Page 4
Labor & Employment Alerts
“Peeing in Peace”… Continued from page 3
zan could complain - at least not legally. (Question: Would
Cruzan have a better claim based on sexual harassment?)
It is noteworthy that OSHA is not alone on the transgender
issue. It is joined by the Equal Employment Opportunity
Commission, the U.S. Department of Justice, and the U.S. De-
partment of Labor.
About the Author:
Michael Cork assists business clients in all phases of the employment rela onship. He works
with business owners and human resources professionals in addressing an ever‐changing list
of employment‐related issues.
Michael works in our Indianapolis office, which is located one block from Monument Circle,
providing clients convenient access to the Indiana State Capital Building, Indiana Court of
Appeals, Indiana Supreme Court, Department of Revenue, and other state agencies.
Phone: 317.464.1594
Email: mcork@bamberger.com
Carla Cruzan, a female teacher and co-worker of Nielsen,
ultimately filed suit in federal court alleging, in part, sex dis-
crimination. The federal district court and the Eighth Circuit
Court of Appeals held against Cruzan, stating that the
transgendered coworker's use of the female staff restroom
had no effect on Cruzan's title, salary, or benefits, and there-
fore there was no adverse employment action of which Cru-
This newsletter is intended to provide general information about current labor and
employment law developments. It is not intended to address specific legal issues.
201 N. Illinois Street, Suite 1225
Indianapolis, IN 46204‐4219
Phone: 317.464.1591
Fax: 317.464.1592
Website: www.bamberger.com
For more than 50 years, Bamberger, Foreman, Oswald &
Hahn, LLP has served clients throughout central and
southern Indiana. Our strong regional presence is an out‐
growth of the original firm started by Fred Bamberger,
William Foreman, Charles E. Oswald, Jr., and Robert Hahn
in 1959. Our loca ons today include Indianapolis, Evans‐
ville, Posey County, Newburgh, and Princeton, Indiana.
Many of the firm’s a orneys hold licenses to prac ce law
in more than one state, including Indiana, Kentucky, and
Illinois. Our a orneys are commi ed civic leaders and are
ac ve within the communi es they serve.

5. Page 5
Labor & Employment Alerts
It Looks Like the Employer… Continued from page 4