Seven employees at a glass manufacturing plant sued their employer after being terminated for failing drug tests implemented as part of a new workplace safety policy. The district court found that six employees were not disabled under the ADA and therefore could not pursue claims of disability discrimination. However, the appeals court determined that in order to pursue a claim under the relevant ADA section, an individual must be disabled. While the case was decided under the original ADA definition, the ADA amendments broadened the definition of disability, calling into question if the same reasoning would apply today. The key issue remains whether the employer's drug testing policy was sufficiently job-related and consistent with business necessity.

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Can Employees Raise Claims Under ADA If They Are Not
Disabled?
With recent changes to the Americans with Disabilities Act (ADA), disability
discrimination claims are being filed with increasing frequency. As the courts are
working through these claims, they are awarding higher damages than previous
years to cases they find to have merit. In 2010, 25,165 claims were filed with
the 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 2009.1
In spite of the trend of increasing claims, a recent disability discrimination case
appears to have limited the criteria of which employees could pursue disability
claims pursuant to the ADA’s guidance on impermissible medical testing. The
following case reached the Sixth U.S. Circuit Court of Appeals, which was tasked
with determining whether or not individuals without disability could pursue
disability discrimination claims.2
Dura Automotive Systems, Inc. (Dura) is a glass window manufacturing facility in
Lawrenceburg, Tennessee. When the organization began to notice a higher rate
of workplace accidents compared to similar plants, Dura considered the
possibility that employees were engaging in substance abuse in the workplace.
To combat this safety issue, the company implemented a policy that prohibited
the use of legal prescription drugs if such use would adversely affect safety,
company property, or job performance. In conjunction with an independent drug
testing company, Dura created a policy that would “screen” employees for
substances they believed could be dangerous in the workplace. Specifically the
drug test would screen for 12 substances including some commonly found in
legal 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 to
the doctor, provide relevant medical paperwork, and provide a list of all
prescription drugs to Dura. Dura would suspend the employee for 30 days while
the employee switched to a “less risky” prescription medication or stopped using
the prohibited substance. After thirty days, the employee would re-take the drug
test, 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 work
performance. In spite of the letter and per Dura’s policy, they were suspended for
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the initial thirty days. However, the employees were then terminated after failing
a second drug test. The employees sued Dura claiming that their drug testing
policy violated the Americans with Disabilities Act (ADA). Specifically, they
claimed that the drug testing was an “impermissible medical examination.” They
argued that the workplace drug testing policy was illegal because it screens for
substances found in legal prescription drugs. Additionally, it has the potential of
identifying and screening out individuals with a disability.
The district court determined that it would analyze the employees claim that the
drug testing was an “impermissible medical examination” under a specific section
of the ADA.3 This section notes that a “qualified individual with a disability”
cannot be discriminated against “because of the disability.” The section also
defines “discriminate” behavior to include using employment tests which “tend to
screen 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 disabled
per the ADA because they could not prove their aliments substantially limited a
life activity, specifically their ability to work. The seventh employee was found to
qualify as disabled as the employee had a “record of disability” because she had
previously been unable to work due to an existing medical condition. However,
as she was not currently experiencing symptoms of the condition, it was noted
that she was not presently considered “disabled.” Throughout the course of this
case, Dura requested that the court determine if an employee without a disability
could pursue claims under this section of the ADA. The district court ruled that
individuals did not need to be disabled to pursue a disability claim, but certified
the issue for appeal. The U.S. Court of Appeals for the Sixth Circuit scrutinized
the language and held that in order to pursue a disability claim under this section
of the Act, the individuals in question must be disabled, which reversed the
decision 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 the
original ADA definition of disability. Therefore, the Dura case outcome is of
limited use regarding potential future outcomes. The ADA Amendments Act has
substantially broadened the definition of disability, and calls into question if the
Sixth Court’s reasoning would have been applied in a similar fashion. Regardless
of ADA status, the real issue that remains is whether the drug test put in place is
job-related and consistent with business necessity.
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1. These figures do not include benefits obtained through
litigation: http://www.eeoc.gov/eeoc/statistics/enforcement/ada-charges.cfm
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 United
States. 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