Table of Contents

Table of Authorities......................................................................... iii

Statement of Interest........................................................................ 1

Statement of the Case....................................................................... 2

Statement of Facts................................................................... 2

Prior Interlocutory Appeal and District Court Rulings..... 9

Summary of the Argument............................................................ 12

Argument.......................................................................................... 14

I. The District Court Correctly Held That Dura’s

Drug Testing Regime was a Medical Examination

and Inquiry as Defined by the ADA.............................. 14

II. The District Court Correctly Held That Nondisabled

Individuals May Recover Damages for Violations

of 42 U.S.C. § 12112(d)(4)(A)......................................... 22

Conclusion........................................................................................ 31

Certificate of Compliance

Certificate of Service

Addendum

42 U.S.C. § 12112................................................................ A-1

42 U.S.C. § 12114(d)(1)....................................................... A-5

42 U.S.C. § 12117(a)............................................................ A-6

ADA Amendments Act of 2008,

Pub. L. No. 110-325, 122 Stat. 3553............................... A-7

House Education and Labor Committee Report on the

Americans with Disabilities Act, H.R. Rep.

No. 101-485, pt. 2, as reprinted in 1990 U.S.C.C.A.N.

303 (excerpts).................................................................... A-14

EEOC Enforcement Guidance: Disability-Related

Inquiries and Medical Examinations of Employees

Under the Americans with Disabilities Act (ADA),

No. 915.002 (July 27, 2000) (excerpts).......................... A-17

EEOC Enforcement Guidance: Preemployment

Disability-Related Questions and Medical Inquiries,

No. 915-002 (Oct. 10, 1995) (excerpt)............................ A-22

Table of Authorities

Cases Page(s)

Bates, et al. v. Dura Auto. Sys., Inc.,

625 F.3d 283 (6th Cir. 2010)......................................... 10, 14

Bates, et al. v. Dura Auto. Sys., Inc.,

No. 08-29, Memorandum and Order

(M.D. Tenn. July 5, 2011)..................................................... 30

Conroy v. N.Y. State Dep’t of Corr. Servs.,

333 F.3d 88 (2d Cir. 2003).................................................... 24

EEOC v. Murray, Inc.,

175 F. Supp. 2d 1053 (M.D. Tenn. Nov. 13, 2001)..... 29, 30

Harrison v. Benchmark Elecs. Huntsville, Inc.,

593 F.3d 1206 (11th Cir. 2010)............................... 18, 19, 24

Kroll v. White Lake Ambulance Auth.,

691 F.3d 809 (6th Cir. 2012) ....................................... passim

Lee v. City of Columbus,

636 F.3d 245 (6th Cir. 2011)........................................ passim

Roe v. Cheyenne Mountain Conf. Resort, Inc.,

124 F.3d. 1221 (10th Cir. 1997).......................................... 24

Thomas v. Corwin,

483 F.3d 516 (8th Cir. 2007)................................................ 24

Statutes and Public Laws

42 U.S.C. § 12112(a)................................................................. 22, 27

42 U.S.C. § 12112(b)(6)............................................................ 10, 22

42 U.S.C. § 12112(d)(1)................................................................... 27

42 U.S.C. § 12112(d)(4)(a) ................................................ 14, 22, 23

42 U.S.C. § 12114(d)(1)............................................................ 17, 18

42 U.S.C. § 12117(a)....................................................................... 26

ADA Amendments Act of 2008,

Pub. L. No. 110-325, 122 Stat. 3553................................... 27

Legislative History

House Education and Labor Committee Report on the

Americans with Disabilities Act, H.R. Rep. No. 101-485,

pt. 2, as reprinted in 1990 U.S.C.C.A.N. 303................ 17, 18, 28

Other Authorities

EEOC Enforcement Guidance: Disability-Related

Inquiries and Medical Examinations of Employees

Under the Americans with Disabilities Act (ADA),

No. 915.002 (July 27, 2000)................................................. passim

EEOC Enforcement Guidance: Preemployment

Disability-Related Questions and Medical Inquiries,

No. 915-002 (Oct. 10, 1995)................................................... 18, 19

EEOC v. Murray, Inc., No. 00-123, Consent Decree

(M.D. Tenn. Feb. 27, 2002).......................................................... 29

Statement of Interest

The U.S. Equal Employment Opportunity Commission (“Commission”) is the federal agency charged by Congress with responsibility for enforcing our nation’s federal prohibitions on employment discrimination, including Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (“ADA”). In the instant matter, the jury found that the defendant violated the ADA when it subjected six of the plaintiffs to prohibited medical examinations and inquiries that the defendant failed to prove were job related and consistent with business necessity. In its appeal, the defendant challenges the legal standard applied by the district court to determine whether the defendant’s actions amounted to prohibited medical examinations and inquiries as defined by the ADA, as well as the legal basis for these nondisabled plaintiffs to recover damages for this particular type of ADA violation. Given the importance of these issues to the Commission’s ongoing enforcement efforts, the Commission respectfully offers its views on these issues to this Court.[1]

Statement of the Case

I. Statement of Facts

The circumstances giving rise to this suit took place in the Lawrenceburg, Tennessee manufacturing facility of Dura Automotive Systems, Inc. (“Dura”), where Dura manufactures glass window units for cars, trucks, and busses. District Court Docket No. (“R.”) 239, PageID#6568 (Transcript Vol. I); R.238, PageID#6118 (Transcript Vol. III). Prior to the events at issue in this suit, Dura required employees to undergo testing for illegal drug use upon their initial hiring and after their involvement in a workplace accident that resulted in injury. R.236, PageID#5845, 5903-04 (Transcript Vol. II); R.237, PageID#6222 (Transcript Vol. III).

Dura then experienced some drug-related incidents at its Lawrenceburg facility, including what Dura’s then-Safety Specialist characterized as “a little run” of property damage and “a couple of” workers’ compensation claims by employees who tested positive for illegal substances. R.236, PageID#5911-12 (Transcript Vol. II). Out of a stated concern that workplace safety was being compromised, Dura adopted a new, plant-wide substance abuse policy. R.236, PageID#5847, 5912 (Transcript Vol. II). In addition to prohibiting the use and distribution of illegal drugs, the policy also stated that “[t]he use of legal drugs as prescribed by a physician is not permissible” to the extent that it may affect job performance or worker safety. R.236, PageID#5884, 5907-08 (Transcript Vol. II).

Over the course of three days in May 2007, Dura conducted drug testing of all of the facility’s approximately 450 employees. R.236, PageID#5885-86, 6015 (Transcript Vol. II); R.239, PageID#6579 (Transcript Vol. I). The testing was designed to detect the presence of one or more of twelve controlled substances, including substances contained in legal prescription drugs. R.238, PageID#6372, 6375-76, 6397-98 (Transcript Vol. IV). Dura acknowledges that its purpose in conducting the testing was, in part, to uncover the lawful use of certain legally prescribed medications. R.236, PageID#5850, 5908 (Transcript Vol. II); see also Dura’s opening brief as appellant (“AtBr.”) at 31 (“Dura’s drug testing was a test . . . for substances carrying a manufacturer’s warning against the use around machinery and equipment.”).

Dura contracted with a third-party drug testing organization called Freedom From Self (“FFS”) to conduct the testing at its facility, rather than send employees to the emergency room or a doctor’s office as it had previously when testing employees for illegal drug use. R.236, PageID#5889, 5892, 5913 (Transcript Vol. II). Dura entrusted the testing operation to FFS, a drug testing company that Dura’s then-Safety Specialist described as “experts” in the drug testing field and which had represented itself to Dura as a state-certified drug testing entity. R.236, PageID#5915-17, 6020-21 (Transcript Vol. II); R.238, PageID#6366 (Transcript Vol. IV).

On each day of the on-site testing, Dura assembled ten to fifteen employees at a time in its technology center, where the employees were required to register with an FFS representative, signed a Custody and Control form provided by Dura, and received a cup with which to provide a urine sample. R.236, PageID#5848, 6085-86 (Transcript Vol. II); R.238, PageID#6377-78 (Transcript Vol. IV); see also R.241, PageID#6806 (Custody and Control Form). The FFS representatives wore what one plaintiff described as “scrubs”—“like [a licensed practical nurse] would wear”—and used gloves “every time.” R.239, PageID#6585 (Transcript Vol. I); R.238, PageID#6382 (Transcript Vol. IV). Each employee went into a controlled environment to produce a sample and then provided that sample to an FFS representative. R.238, PageID#6377 (Transcript Vol. IV); R. 238, PageID#6378 (Transcript Vol. IV); R.239, PageID#6657 (Transcript Vol. I). With Dura managers present in the room, the FFS representative then conducted an “initial panel test” on the sample to identify the presence of any of the substances selected by Dura for detection. R.236, PageID#5918-19 (Transcript Vol. II); R.238, PageID#6378 (Transcript IV); R.239, PageID#6658 (Transcript Vol. I).

Employees that tested positive for one of these substances were notified of the result immediately by the FFS representative, and their samples were then sealed and sent to a diagnostic laboratory for confirmatory testing and a final determination by a physician serving as FFS’s Medical Review Officer. R.239, PageID#6658 (Transcript Vol. I); R.236, PageID#5853-54, 5922, 5945, 5964 (Transcript Vol. II); R.238, PageID#6398 (Transcript Vol. IV); R.241, PageID#6806 (Custody and Control Form). Beyond simply validating the results on the instant panel test, the confirmatory testing pinpointed the level of drugs in the employee’s system, at times even revealing the specific medication that the employee was taking. R.238, PageID#6476, 6480, 6487 (Transcript Vol. IV). If the Medical Review Officer determined, after consulting with the employee who provided the sample, that the positive result was explained by a valid medical reason, he would issue a final determination changing the test result from “positive” to “negative” and report that change to FFS. R.236, PageID#5984 (Transcript Vol. II); R.238, PageID#6458-59, 6461 (Transcript Vol. IV). FFS then forwarded that determination to Dura. R.236, PageID#5855, 5946 (Transcript Vol. II).

Dura, however, did not wait for the confirmatory testing to take action against its employees. If the employee’s sample tested positive in the initial panel test, Dura sent the employee home and followed up with a letter stating that the employee had been placed on a thirty-day leave of absence and could return to work only after undergoing and passing a retest. R.236, PageID#5922, 5947, 6038 (Transcript Vol. II). Dura required the employee to meet with FFS and “bring in [a list of her] medications for documentation” because Dura wanted to know which of the medications came with a warning regarding side effects. R.238, PageID#6385, 6415-16 (Transcript Vol. IV); R.236, PageID#6049-50 (Transcript Vol. II).

For each such employee, FFS documented all prescription medications that came with warnings against operating machinery or motor vehicles and disclosed that information to Dura. R.238, PageID#6385-86 (Transcript Vol. IV); R.238, PageID#6386 (Transcript Vol. IV); see R.236, PageID#5977 (Transcript Vol. II). Although Dura provided documentation to employees stating that the purpose of the testing was in part to determine whether certain medications adversely affected the employee’s ability to perform his or her job, a Dura official admitted that it made no such inquiry into whether any employee’s medications adversely affected the employee’s ability to perform his or her job. R.236, PageID#5812-13, 5846, 5850 (Transcript Vol. II); R.237, PageID#6132 (Transcript Vol. III); R.239, PageID#6578-79 (Transcript Vol. I).

Instead, during the compulsory leave of absence period, Dura required that the employees either transition to another non-prohibited-by-Dura medication or cease taking the Dura-prohibited medication altogether. R.239, PageID#6592-93 (Transcript Vol. I); R.237, PageID#6230 (Transcript Vol. III); R.241, PageID#6811-12 (Dura testing results follow-up letter). If the employees failed to do so—even if their treating physicians had advised that they not change their medications—and retested positive, they were terminated. R.239, PageID#6598 (Transcript Vol. I) (“[M]y doctors told me not to stop taking [my medications.]”); R.239, PageID#6670 (Transcript Vol. I) (“[M]y doctor told me [] 30 days is not sufficient time because . . . I would be in danger[] of seizures[.]”); R.237, PageID#6230 (Transcript Vol. III) (“I had 30 days to come off of [my medication], but according to my doctor, it was not advisable to come off of it.”); R.241, PageID#6805 (Dura termination letter).

The plaintiffs in this appeal are six former employees of Dura’s Lawrenceburg facility. See Appellee’s Brief at 5-9 (statement of facts). The plaintiffs worked for Dura in a variety of capacities, and all tested positive for one of the twelve prohibited substances in an initial panel test, as a consequence of their lawfully taking a legally-prescribed medication. Id. Each plaintiff provided FFS with information regarding his or her prescription medications, and FFS later reviewed their positive initial panel tests and changed the final result to “negative” based on the medical explanation provided by the employees. Id. Dura nevertheless made no inquiry into whether the plaintiffs’ prescription medication had any effect on their ability to perform their jobs and refused to permit the employees to return to work. Id. Dura then terminated the plaintiffs based on their inability to pass a retest required for them to return to work. Id.

II. Prior Interlocutory Appeal and District Court Rulings

The plaintiffs filed suit alleging that Dura violated the ADA’s prohibition on unlawful disability-related medical examinations and inquiries by subjecting them to drug testing and then requiring them to disclose the medications they were taking. R.116, PageID#3597 (Memorandum). On summary judgment, the district court held that the plaintiffs’ § 12112(d)(4)(A) medical examination and inquiry claims should instead be characterized as a challenge to an unlawful “qualification standard” under § 12112(b)(6), and that individuals need not be disabled to bring such a challenge.[2] R.77, PageID#2793 at n.5 (Memorandum). Dura sought and was granted interlocutory appeal on this issue, and the Sixth Circuit reversed the district court. Bates, et al. v. Dura Auto. Sys., Inc., 625 F.3d 283, 283-84 (6th Cir. 2010) (holding that an individual must be disabled to pursue a claim under

§ 12112(b)(6)). Notably, however, the Court of Appeals stated that while it was not answering the question at that time because the matter was not part of the question certified for interlocutory appeal, “several courts have held that nondisabled individuals can pursue claims under § 12112(d)(4).” Id. at 286 (citing cases). On remand, the district court concluded that the plaintiffs could proceed under § 12112(d)(4)(A). R.97, PageID#2944-48 (Memorandum).

At trial, the court decided as a matter of law that Dura’s testing regime amounted to employee medical examinations and inquiries as defined by the ADA, and left to the jury the question of whether the testing was job related and consistent with business necessity. R.237, PageID#6286-88 (Transcript Vol. III); R.195, PageID#4494 (Verdict Form). The jury answered this question in the negative, and returned a verdict in favor of the plaintiffs. Id.

Dura then renewed its pre-verdict motion for judgment as a matter of law, and moved for a new trial. R.210, PageID#4663 (memorandum in support of motion). The district court denied both motions. R.215, PageID#4747 (Memorandum). The court rejected Dura’s contention that its testing protocol was not a medical examination or inquiry within the meaning of the ADA, noting that the basis for the court’s conclusion to the contrary was clear. R.215, PageID#4750-52 (Memorandum). For support, the court pointed to the language of the ADA, relevant caselaw, and the Commission’s guidance on the issue. Id. The court next rejected Dura’s argument that the testing program should be characterized as a “qualification standard” under § 12112(b)(6). R.215,PageID#4752 n.4 (Memorandum). The court also rejected Dura’s contention that because the plaintiffs were not individuals with disabilities, they could not recover damages under the ADA. R.215, PageID#4755-56 (Memorandum). The court noted that just before trial it had rejected this argument on the basis of the “ample case law from around the country holding that a non-disabled plaintiff could assert and recover on a claim under Section 12112(d),” and that the right of a non-disabled plaintiff to do so was “well recognized.” Id.

Summary of the Argument

The district court correctly concluded as a matter of law that Dura’s testing regime constituted medical examinations and inquiries of employees as defined by the ADA. The statute and Sixth Circuit case law, as well as the Commission’s policy guidance, make clear that a testing regimen like the one implemented by Dura in 2007 is a “medical examination” and includes “inquiries” within the meaning of the ADA, regardless of whether the testing regime is otherwise justifiable under the statute as job-related and consistent with business necessity. Furthermore, the uncontroverted evidence—and Dura’s admission—that the company was intentionally testing for employees’ legal use of lawful prescription medications disqualified the testing program from the statutory safe harbor permitting testing for illegal drug use.

The district court was also correct to hold that the plaintiffs were protected under the ADA’s medical examinations and inquiries provision, and are entitled to recover damages for the harm they suffered as a result of Dura’s violation of that provision, irrespective of whether or not they are disabled. The plain language of the statute protects all employees, and not just those who are disabled, from unlawful medical examinations and inquiries. Every court of appeals to have addressed the issue—including this Court—has so ruled. Moreover, every court of appeals to have addressed the issue of whether nondisabled individuals can recover damages for harm caused by an employer’s violation of § 12112(d)—again, including this Court—has concluded that nondisabled individuals may recover damages for such harm. This interpretation of the ADA is consistent not only with the statutory language, but also with the legislative history reflecting Congress’ intent to protect against unnecessary medical examinations or inquiries. This interpretation is also critical to advancing the overarching purpose of the statute—to protect disabled individuals from discrimination in the workplace.

Argument

I. The District Court Correctly Held That Dura’s Drug Testing Regime was a Medical Examination and Inquiry as Defined by the ADA.

The ADA provides that covered employers “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 is shown to be job-related and consistent with business necessity.” 42 U.S.C.

§ 12112(d)(4)(a) (attached in Addendum (“Add.”) at A-4)[3]; see also Kroll v. White Lake Ambulance Auth., 691 F.3d 809, 813 (6th Cir. 2012) (same); Bates v. Dura Auto. Sys., Inc., 625 F.3d 283, 286 n.3 (6th Cir. 2010) (same). For purposes of the ADA, a disability-related inquiry is a “question (or series of questions) that is likely to elicit information about a disability.” EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), No. 915.002, at 4 (July 27, 2000) (Add. at A-20), available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html.[4]

It has long been the Commission’s position that “asking an employee whether s/he currently is taking any prescription drugs or medications, whether s/he has taken any such drugs or medications in the past, or monitoring an employee’s taking of such drugs or medications” is likely to elicit disability-related information, and thus constitutes a disability-related inquiry. Id. This Court agrees with the Commission’s approach, recognizing that “[o]bviously, asking an employee whether he is taking prescription drugs or medication . . . trigger[s] the ADA’s . . . protections” against impermissible disability-related inquiries. Lee v. City of Columbus, 636 F.3d 245, 254 (6th Cir. 2011).

Similarly, for purposes of the ADA, a disability-related medical examination is a procedure or test that seeks information about an individual’s physical or mental impairments or health. Kroll, 691 F.3d at 816, 818 (citing Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees, at 5-6). Factors to be considered in determining whether a procedure or test meets this definition include whether the test is administered and/or interpreted by a health care professional; whether it is designed to reveal an impairment or physical or mental health; whether the test is invasive; whether the test measures an employee’s performance of a task or measures his or her physiological responses to performing a task; whether the test is normally given in a medical setting; and whether medical equipment is used. Id. at 816 (citing Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees, at 6). Of particular relevance to the instant matter, urine analysis can be one such type of test. See Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of employees, at 5 (Add. at A-21), available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html (identifying urine testing for alcohol use or to detect disease as qualifying medical examinations).

Congress specifically excluded testing for current illegal drug use from the ADA’s definition of medical examinations of employees that must be job-related and consistent with business necessity. 42 U.S.C.

§ 12114(d)(1) (Add. at A-5); see also House Education and Labor Committee Report on the Americans with Disabilities Act, H.R. Rep. No. 101-485, pt. 2, at 79, as reprinted in 1990 U.S.C.C.A.N. 303, 362 (Add. at A-16) (“Under section 104(d) . . . employees may be required to take a drug test without a showing that the test is job-related and consistent with business necessity, as is required under Section 102(c)(2-4) for other medical examinations.”). However, the exception is narrow, limited to tests “to determine the illegal use of drugs.” 42 U.S.C. § 12114(d)(1) (Add. at A-5).

The narrowness of the application of the illegal drug use testing provision is intentional. In drafting the ADA’s exception for illegal drug use testing, Congress was well aware that testing for illegal drug use could yield information about the employee beyond whether he or she is a current illegal drug user. “Employers often use drug tests that detect the presence of a wide range of drugs, not simply illegal drugs. In addition, many legally prescribed medications taken under the supervision of a health care professional may register on a test as illegal drugs.” House Education and Labor Committee Report, H.R. Rep. No. 101-485, pt. 2, at 79, as reprinted in 1990 U.S.C.C.A.N. 303, 362 (Add. at A-16). Congress was also aware of the potential for unlawful use of such information, and explicitly provided that “[i]ndividuals who take medication under medical supervision and those who are erroneously regarded as illegal drug users are protected against discrimination.” Id. at 362-63.

The Commission has recognized, in the analogous context of pre-employment testing for illegal drug use, that an employer may ask follow-up questions in order to determine whether a positive result from a drug test is indicative of illegal, rather than legal, drug use. EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Inquiries, No. 915-002, at 10 (Oct. 10, 1995) (Add. at A-24), available at http://www.eeoc.gov/policy/docs/preemp.html; see also Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1215 (11th Cir. 2010) (same).[5] If an employee tests positive for illegal drugs, “the employer may validate the test results by asking about lawful drug use or possible explanations for the positive result other than the illegal use of drugs.” EEOC Enforcement Guidance: Preemployment Disability-Related Questions, at 10 (Add. at A-24). Acceptable questions include narrow inquires not likely to elicit disability-related information, such as “What medications have you taken that might have resulted in this positive test result?” or “Are you taking this medication under a lawful prescription?” Id.

However, inquiries that go beyond this narrow scope, and that are likely to elicit disability-related information, do not pertain to the narrow question of whether a positive test result was caused by legal or illegal drug use, and thus do not fall under the illegal drug use exception. Id.; Harrison, 593 F.3d at 1215-16. As such, unless such overbroad inquiries are shown by the employer to be job-related and consistent with business necessity, they will constitute unlawful disability-related medical inquiries.

Based on the foregoing authority, the district court correctly determined that Dura’s testing regime constituted medical examinations and inquiries of its employees within the meaning of the ADA. It was uncontested at trial that Dura employed FFS, a professional drug testing company, to perform a urine test on every employee at its Lawrenceburg facility. See supra at pp. 3-9. FFS not only collected urine samples from Dura’s employees and performed an initial screening of those samples for one or more of twelve substances, but thereafter sent the initially-positive-testing samples to a laboratory for follow-up confirmation testing by a physician. See id. Dura also directed its employees who tested positive to provide their prescription medications to FFS. See id.

Under these circumstances, where a urinalysis was administered and interpreted by health care professionals, was invasive, was performed in a quasi-medical setting, involved the use of medical equipment in the collection and analysis of the urine samples, and employees testing positive for lawful medications were required to provide information regarding their prescriptions to FFS which then passed that prescription information back to Dura, the court correctly concluded that the drug testing constituted medical examinations and inquiries under § 12112(d)(4)(A). See Kroll, 691 F.3d at 816, 818 (identifying relevant factors to be considered in determining if a test constitutes a medical examination for purposes of the ADA); Lee, 636 F.3d at 254 (holding that “[o]bviously, asking an employee whether he is taking prescription drugs or medication . . . trigger[s] the ADA’s . . . protections” against impermissible disability-related inquiries); Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees, at 5 (Add. at A-21) (identifying urine testing as medical examination).

Moreover, it is not only uncontested, but admitted by Dura, that the company’s testing program was specifically intended to uncover not only illegal drug use but also employees’ lawful use of prescription drugs. See supra at pp. 3-4. In conceding that it was intentionally testing for employees’ lawful use of prescription medication, Dura admitted that its inquiries regarding prescriptions were not for the limited purpose of clarifying whether a positive test result to a test for illegal drug use was caused by a lawful prescription. Dura was specifically trying to discover details regarding its employees’ legal use of lawful prescription medications. As such, Dura’s overbroad testing of the plaintiffs did not fall under the ADA’s exception for testing for illegal drug use.

II. The District Court Correctly Held That Nondisabled Individuals May Recover Damages for Violations

of 42 U.S.C. § 12112(d)(4)(A).

The plain language of § 12112(d)(4)(A) makes clear that, unlike some other provisions of the ADA, the statute’s protection against medical examinations and inquiries extends to all employees, regardless of disability status. In § 12112(d)(4)(A), Congress expressly prohibited employers from conducting medical examinations or making 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 is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A) (Add. at A-4) (emphasis added). This is in direct contrast to several of the ADA’s other antidiscrimination provisions, which expressly limit protection to qualified individuals with disabilities. See, e.g., 42 U.S.C. § 12112(a) (Add. at A-1) (prohibiting certain types of discrimination against a “qualified individual with a disability”), (b)(6) (Add. at A-2) (prohibiting employers’ use of qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an “individual with a disability”). Accordingly, any and all employees—disabled or not—are protected by the ADA against unlawful medical examinations and inquiries. See Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees, at 3 (Add. at A-19), available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html (“This statutory language makes clear that the ADA’s restrictions on inquiries and examinations apply to all employees, not just those with disabilities.”).

This Court agrees. In Lee, this Court explicitly held that

§ 12112(d)(4)(A) protects all employees from unlawful exams and inquiries, regardless of their disability status.[6] 636 F.3d at 252. Lee involved a challenge to the employer’s sick leave policy, which in relevant part required employees who had been out on sick leave for more than three days to provide, upon their return to work, a physician’s note explaining the nature of their illness and that the employee was capable of returning to work. Id. at 248. This Court concluded that the plaintiffs could challenge the sick leave policy, as “[a] plaintiff need not prove that he or she has a disability in order to contest an allegedly improper medical inquiry under 42 U.S.C. § 12112(d).” Id. (citing Harrison, 593 F.3d at 1214; Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007); Conroy v. N.Y. State Dep’t of Corr. Servs., 333 F.3d 88, 94 (2d Cir. 2003); Roe v. Cheyenne Mountain Conf. Resort, Inc., 124 F.3d. 1221, 1229 (10th Cir. 1997)). As the Tenth Circuit had previously recognized, and this Court recited favorably in Lee, 636 F.3d at 252, to conclude otherwise would defeat the congressional purpose behind prohibiting disability-related medical examinations or inquiries, for “‘[i]t makes little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability.’” Roe, 124 F.3d at 1229 (citation omitted).

Moreover, Lee does not stand alone in this Circuit. In Kroll, issued just this past August, this Court observed that “[m]ost courts, including this Circuit, have concluded that disability is not an element of a § 12112(d) claim,” citing its decisions in Lee and the earlier Dura interlocutory appeal as support. 691 F.3d at 813 n.6.

While Lee and Kroll have already settled in this Court the question of whether nondisabled individuals may bring suit for a violation of § 12112(d)(4)(A), Dura inexplicably makes no mention of either decision’s treatment of this issue in its brief on appeal. See generally AtBr. at 43-48. Instead, Dura attempts to circumvent these rulings by arguing that nondisabled individuals are “not entitled to [the] remedies of the ADA” because the remedies under the statute are limited to individuals who suffer “discrimination on the basis of disability.” AtBr. at 43. Dura is incorrect.

This Court has already recognized that nondisabled individuals are able to recover damages caused by an employer’s violation of

§ 12112(d)(4)(A). In Kroll, the court held that when an employer violates § 12112(d) and such violation is the proximate cause of an injury—there, as here, termination of the individual’s employment—the court is able to remedy that harm, and therefore the individual has sufficient Article III standing to bring suit. 691 F.3d at 813-14. It is implicit within this holding that the individual’s termination is remediable by the court, for without suffering a harm that is judicially remediable the individual would lack standing. See id. at 813. Accordingly, in Kroll this Court already rejected the notion that violations of § 12112(d)(4)(A) that result in harm to a nondisabled individual are irremediable. So long as the claimed violation of

§ 12112(d)(4)(A) results in a harm that is judicially remediable, the individual may proceed with the claim. The claimant’s disability status is irrelevant to the inquiry.

Even if this Court had not already conclusively resolved this issue, Dura’s argument would still be without support. The ADA’s remedial provision states that statutory remedies are available to “any person alleging discrimination on the basis of disability in violation of any provision in this chapter.” 42 U.S.C. § 12117(a) (Add. at A-6) (emphasis added). On its face, the remedies provision does not limit statutory remedies to “qualified individuals with disabilities” or otherwise preclude recovery of damages for violations of the medical examinations and inquiries provision.

Instead, Congress specifically incorporated the medical examinations and inquiries provision into the ADA’s general prohibition of disability discrimination. In § 12112(a), Congress provided the “general rule” that employers not discriminate against disabled individuals, and in § 12112(b) provided an extensive—but not exhaustive—definition of subsection (a)’s use of the term “discriminate.”[7] 42 U.S.C. § 12112(a) (Add. at A-1). However, in

§ 12112(d)(1) of the medical examinations and inquiries provision, Congress expanded upon § 12112(a)’s “general rule” by adding that “[t]he prohibition against discrimination as referred to in subsection (a) of this section shall include medical examinations and inquiries.” 42 U.S.C. § 12112(d)(1) (Add. at A-4). Moreover, in addition to Congress’ use of explicit language to include the medical examinations and inquiries provision under the statute’s definition of “discrimination,” the ADA’s legislative history indicates that Congress specifically intended to treat unlawful medical examinations and inquiries as discrimination under the statute. See House Education and Labor Committee Report, H.R. Rep. No. 101-485 pt. 2, at 72 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 355 (Add. at A-15) (“[T]he legislation specifies that the prohibition against discrimination in section 101(a) applies to medical examinations and inquiries.”).

Accordingly, the statute’s definition of disability-based discrimination includes unlawful medical examinations and inquiries of nondisabled applicants and employees, and victims of such unlawful examinations and inquiries are entitled to remedies for the harm they may have suffered as a result of such unlawful conduct.

To conclude otherwise would not only ignore the statutory language and Congressional intent, but would seriously undermine a key statutory objective. As identified in Lee, Roe, and numerous other circuit court decisions, the effectiveness of the ADA’s prohibitions against unjustified medical examinations and inquiries of disabled individuals hinges on not requiring those who are entitled to such protection to first prove their disability status in order to receive such protection. If only individuals with disabilities could obtain remedies for unlawful examinations and inquiries, then only those who first prove their disability status will receive statutory redress—thereby defeating the purpose of prohibiting unnecessary inquiries into employees’ disability status in the first place.

The Commission notes that Dura’s argument on this issue, presented at pages 43-48 of its brief, is based almost entirely on an overruled, twelve-year-old decision by Judge Trauger, the presiding district court judge in this case, and that in the present suit Judge Trauger herself recognized that overruling and unequivocally rejected that same argument. In 2001, Judge Trauger ruled on summary judgment in EEOC v. Murray, Inc., that nondisabled individuals were not protected under the ADA, including under § 12112(d).[8] 175 F. Supp. 2d 1053, 1058 (M.D. Tenn. Nov. 13, 2001). As support for that holding, Judge Trauger simply pointed to the language of §§ 12117(a) and 12112(a), without considering Congress’ inclusion in § 12112(d) of a provision specifically incorporating unlawful medical examinations and inquiries into the statute’s general discrimination provision. Id.

However, in the present action, when Dura presented Judge Trauger with its Murray-based arguments in a motion to dismiss on the eve of trial, Judge Trauger rejected Dura’s argument. R.177 (Bates, et al. v. Dura Auto. Sys., Inc., No. 08-29, Memorandum and Order (M.D. Tenn. July 5, 2011)). In rejecting the analysis that she had employed years earlier in Murray, Judge Trauger observed that in the intervening years a number of courts of appeals had recognized that nondisabled plaintiffs could file suit for damages based on a violation of § 12112(d). Id. at 3-4 (citing cases). Judge Trauger also recognized other courts’ holdings that recovery under § 12112(d)(4) must be premised on the aggrieved individual suffering some sort of tangible injury. Id. at 4. Judge Trauger further noted that this Court, in its 2010 decision on the Dura interlocutory appeal, had approvingly cited several of those same decisions. Id. Judge Trauger concluded that while none of the other circuit courts had addressed the interplay of § 12117(a) and § 12112(d), those courts “clearly allow a non-disabled plaintiff to recover damages on a § 12112(d) claim.” Id. For the reasons described previously, see supra at pp. 22-29, Judge Trauger correctly rejected in this suit the analysis she earlier applied in Murray.

Conclusion

For the aforementioned reasons, the Commission respectfully requests that the Court affirm the district court’s conclusions that Dura’s May 2007 drug testing program constituted medical examinations and inquiries of employees as defined by the ADA, and that all employees are able to bring claims and recover damages for violations of the ADA’s medical examinations and inquiries provision, regardless of their disability status.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

DANIEL T. VAIL

Acting Assistant General Counsel

s/ James M. Tucker

JAMES M. TUCKER

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

E-mail: James.Tucker@EEOC.gov

Attorneys for amicus curiae

U.S. Equal Employment

Opportunity Commission

[1] The Commission does not express a position on any other issue presented in this appeal.

[2] In contrast to § 12112(d), the plain language of § 12112(b)(6) limits its protection to qualified individuals with disabilities, in that it defines “discriminate” to include “[u]sing 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.” 42 U.S.C. § 12112(b)(6) (attached in Addendum at A-2).

[3] As the relevant events at issue in this case took place prior to the effective date of the 2008 amendments to the ADA, all references to the ADA in this brief (except where otherwise expressly stated) are to the pre-2008-amendments version of the statute. To that end, the ADA provisions attached in the addendum to this brief are from the pre-2008-amendments version of the statute.

[4] In Kroll, this Court relied heavily on this guidance, observing that “[t]he EEOC Enforcement Guidance while nonbinding constitutes a body of experience and informed judgment to which courts and litigants may properly resort for guidance,” and that the Court had “recently affirmed [in Lee v. City of Columbus, 636 F.3d 245, 254 (6th Cir. 2011)] that the EEOC Enforcement Guidance is ‘very persuasive authority’ in questions of statutory interpretation of the ADA.” 691 F.3d at 815 (citations and internal alterations omitted).

[5] The panel decision in Harrison was authored by Judge Eugene E. Siler, Jr., of the Sixth Circuit, who heard the case while sitting by designation in the Eleventh Circuit. Harrison, 593 F.3d at 1209.

[6] While Lee was brought under a provision of the Rehabilitation Act, 29 U.S.C. § 794(a), this Court “agree[d] with the district court and other courts that the ADA’s limitations on the disclosure of medical information set forth in 42 U.S.C. § 12112(d) are incorporated by reference into the Rehabilitation Act.” Lee, 636 F.3d at 252 (citations omitted). As such, this Court’s holding in Lee was based on its analysis of the ADA.

[7] When Congress amended the ADA in 2008, it changed the language in § 12112(a) from “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual” to “[n]o covered entity shall discriminate against a qualified individual on the basis of disability.” ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553, 3557 (Add. at A-11). The present action is governed by the pre-amendment version of the statute.

[8] The Commission and Murray subsequently resolved that lawsuit by entry of a consent decree in the district court, so no appeal was taken from that summary judgment ruling. See EEOC v. Murray, Inc., No. 00-123, Consent Decree (M.D. Tenn. Feb. 27, 2002).