Table of Contents

Table of Authorities........................................................................ ii

Rule 35(b) Required Statement.................................................... 1

Statement of Interest...................................................................... 2

Argument.......................................................................................... 4

Conclusion...................................................................................... 14

Certificate of Compliance

Certificate of Service

Table of Authorities

Cases Page(s)

EEOC v. Prevo’s Family Market, Inc.,

135 F.3d 1089 (6th Cir. 1998).............................................. 4

Indergard v. Georgia-Pacific Corp.,

582 F.3d 1049 (9th Cir. 2009)......................................... 2, 8

Kroll v. White Lake Ambulance Auth.,

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

Lee v. City of Columbus,

636 F.3d 245, 254 (6th Cir. 2011)................................... 3, 6

Norris v. Premier Integrity Solutions,

641 F.3d 695 (6th Cir. 2011)......................................... 2, 11

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997)............................................................... 5

Skinner v. Ry. Labor Executives’ Ass’n,

489 U.S. 602 (1989)............................................................. 11

Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646 (1995)........................................................ 2, 11

Statutes

42 U.S.C. § 12101............................................................................ 1

42 U.S.C. § 12112(b)(6)................................................................... 5

42 U.S.C. § 12112(d)....................................................................... 3

42 U.S.C. § 12112(d)(2)................................................................... 9

42 U.S.C. § 12112(d)(3)(B).............................................................. 6

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

42 U.S.C. § 12112(d)(4)(C).............................................................. 6

42 U.S.C. § 2000e-2(k)(1)(A)(i)....................................................... 6

Regulations

29 C.F.R. § 1630.13......................................................................... 3

29 C.F.R. § 1630.14......................................................................... 3

Other Authorities

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........................... 9, 10, 11

EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, No. 915.002 (Oct. 10, 1995)................................................................................ 11

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

RULE 35(b) REQUIRED STATEMENT

This case turns on whether an employer’s mandatory urine test, structured to identify whether its employees used certain prescription drugs, was a medical examination within the meaning of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. (“ADA”). A jury found that the urine test was not job-related and consistent with business necessity—the statutory defenses for otherwise prohibited medical examinations. The panel majority reversed the judgment on the ground that a jury could find that, for example, the employer had no “pernicious motive” in using the test, slip op. at 13, and so the district court could not resolve as a matter of law the preliminary question of whether a urine test for prescription drugs is a medical examination.

In so holding, the panel majority relied largely on EEOC Guidance listing a test’s “design[]” as a factor to consider in assessing whether a test is a medical examination. But the panel majority’s view of the medical examination provision and the EEOC Guidance interpreting that provision is erroneous. In particular, the panel majority has misinterpreted the design factor, reading it not as an objective assessment of what the test is structured to measure, but instead as a largely subjective inquiry into the employer’s motives in requiring the test. En banc review is warranted because the panel majority’s holding conflicts with this Court’s decision in Kroll v. White Lake Ambulance Authority, 691 F.3d 809 (6th Cir. 2012), and with the decision of at least one other court of appeals. See Indergard v. Georgia-Pacific Corp., 582 F.3d 1049 (9th Cir. 2009).

The panel majority also erred in its construction of other factors–namely, the “invasiveness” factor–and its elevation of the subjective design factor above all others in assessing a urine test. See slip op. at 13-15 (panel majority); 28 (Gibbons, J. dissenting). En banc review is necessary because the panel majority’s decision conflicts with decisions of this Court and the Supreme Court addressing the invasiveness of urine tests. See Norris v. Premier Integrity Solutions, 641 F.3d 695 (6th Cir. 2011); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995).

STATEMENT OF INTEREST

The Commission is the federal agency charged by Congress with the interpretation, administration, and enforcement of Title I of the ADA. In this case, the panel majority concluded—over the vigorous dissent of Judge Gibbons—that the district court erred in ruling as a matter of law that Dura Automotive Systems’ mandatory urine test, which sought information about prescription drug use, was a “medical examination” for purposes of the ADA, 42 U.S.C. § 12112(d). Slip op. at 14-15 (panel majority); 26-28 (Gibbons, J. dissenting). The Commission has issued regulations and guidance on the ADA’s medical examination prohibition. See 29 C.F.R. §§1630.13, 1630.14; EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), No. 915.002 (July 27, 2000) (“Enforcement Guidance”), available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html.^{^[1]} The Commission submits that the panel majority conclusion was based on a misinterpretation of both the medical examinations provision and the Commission’s guidance. Because of this erroneous interpretation, and because of the importance of this issue to the Commission’s ADA enforcement efforts, the Commission respectfully offers its views to this Court.

ARGUMENT

The ADA generally prohibits covered employers from “requir[ing] a medical examination” or “mak[ing] 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.” 42 U.S.C. § 12112(d)(4)(A). Such an examination is not prohibited, however, if it “is shown to be job-related and consistent with business necessity.” Id. For purposes of the ADA, a “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, at 5-6.

This Court has emphasized that “[t]he statute clearly permits medical examinations, but only in certain limited circumstances. The focus is on the nature of job-relatedness and what constitutes a business necessity.” EEOC v. Prevo’s Family Market, Inc., 135 F.3d 1089, 1094 (6th Cir. 1998). Here, however, the panel focused not on the lack of job-relatedness and business necessity for the test, but instead on Dura’s intent in mandating the urine test. In particular, the panel majority stated that whether a test is a medical examination is, in part, a “subjective . . . consideration[]” in which “much depends on Dura’s credibility.” Slip op. at 13-14. There may be evidence, the panel majority stated, that would support finding that Dura had “a pernicious motive” and that the test was a “pretext for screening out potentially disabled employees.” Id. at 14-15. Or, the panel added, there may be evidence that test “targets” health-related information. Id. at 15.

Nothing in the statute supports the panel majority’s infusion of a required intent element into the medical examination assessment. Indeed, the language of the provision as a whole – namely the clause listing job-relatedness/business necessity as a defense – indicates otherwise. See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (“The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”). The job-relatedness/business necessity defense is a defense where intent is not at issue. See, e.g., 42 U.S.C. § 12112(b)(6) (job-relatedness/business necessity defense applies to selection criteria that screen out or tend to screen out individual or class of individuals with a disability); cf. 42 U.S.C. § 2000e-2(k)(1)(A)(i) (employers may avoid liability for disparate impact discrimination under Title VII of the Civil Rights Act by showing that “the challenged practice is job related for the position in question and consistent with business necessity”). It is not a defense where “credibility” and “pretext” are the critical considerations.

Moreover, narrowing the category of medical examinations to those tests where the tested individuals can show the employer specifically intended to obtain health information would undermine the ADA’s confidentiality provision. Under the ADA, where the employer has required a “medical examination,” then the “information obtained regarding the medical condition or history of the applicant [or employee] is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record.” 42 U.S.C. § 12112(d)(3)(B); see also 42 U.S.C. § 12112(d)(4)(c) (extending confidentiality requirement to cover employees as well as job applicants); Lee v. City of Columbus, 636 F.3d 245, 250-51 (6th Cir. 2011) (same). Reading the medical examination provision to require intent by the employer to uncover health information would leave exposed health information acquired collaterally, such as the prescription drug information the urine test uncovered in this case.

In support of the pre-eminent role the panel majority accords an employer’s intent in assessing whether a urine test is a medical examination, the panel invokes the third of seven factors the Commission has listed in its Enforcement Guidance: “whether the test is designed to reveal an impairment or physical or mental health.” The panel read this factor as requiring inquiry into whether the employer had a “pernicious motive” or otherwise meant to learn details about its employees’ medical conditions. The panel misread this factor: if a urine test is structured, or “designed,” to disclose prescription medications, then it is revealing some information about the subject’s health, and counts as a medical examination.

Emphasizing the employer’s motives, rather than the structure of the test, places the panel decision at odds with this Court’s decision in Kroll, 691 F.3d at 816, where this Court noted that the central inquiry is whether the test “is likely to elicit information about a disability.” Relying on the Enforcement Guidance, this Court discussed an employer’s intentions by contrasting them with “the predominant purpose and design of a particular test,” and stressed that it is the latter that must be accorded more “weight and significance.” Id. at 817; see also id. at 816 (citing a Guidance example in which a psychological test is “designed to reveal mental illness” but the “particular employer says it does not give the test to disclose mental illness”). Nor must there be a specific connection, this Court held; a test is a medical examination if it provides “evidence that would lead to identifying” an impairment. Id. (citing Enforcement Guidance at 15-16).

The Ninth Circuit likewise has rejected the notion that the employer’s intentions or purpose in implementing the test negates deeming it a medical examination where the structure of the test made it “capable of revealing impairments.” Indergard, 582 F.3d at 1056; see also id. (“substance” of test and what it is capable of revealing must be the focus, not the “purpose”) (citing Enforcement Guidance).

Finally, Congress’ omission of an intent requirement for covered medical examinations is wholly consistent with its awareness when it drafted the ADA of the problem posed by the fact that employers’ testing for illegal drug use can often unintentionally reveal the presence of lawfully-used prescription medication—as was the case here—as well as the historical problem of employers using medical information in their decisionmaking processes to the detriment of disabled individuals. See House Education and Labor Committee Report on the Americans with Disabilities Act, H.R. Rep. No. 101-485, pt. 2, at 72, 79, as reprinted in 1990 U.S.C.C.A.N. 303, 362 (“Historically, employment application forms and employment interviews requested information concerning an applicant’s physical or mental condition. This information was often used to exclude applicants with disabilities”; “[e]mployers 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.”).

Congress’ awareness of how medical examinations can serve to facilitate discrimination against disabled individuals is reflected in its prohibition of any medical examinations of job applicants before an offer of employment has been made, 42 U.S.C. § 12112(d)(2), and its recognition that even if the employer requires a pre-offer test for illegal drug use, such testing “should not conflict with the right of individuals who take drugs under medical supervision not to disclose their medical condition before a conditional offer of employment is made,” H.R. Rep. No. 101-485, pt. 2, at 79. This authority recognizing the potential for unlawful conduct incident to a test or procedure, such as the urine testing program at issue here, undermines the panel majority’s holding that absent evidence the test was intended to reveal health information it was error to hold as a matter of law that the test was a medical examination.

The panel majority not only misunderstood the “design” factor in the Enforcement Guidance, but it also erred in elevating the subjective, motive element as the most critical to ascertaining whether a urine test that measured the presence of prescription drugs. See slip op. at 27 (Gibbons, J., dissenting). The Enforcement Guidance itself lists seven factors. All these factors “should be considered to determine whether a test (or procedure) is a medical examination”:

(1) whether the test is administered by a health care professional; (2) whether the test is interpreted by a health care professional; (3) whether it is designed to reveal an impairment or physical or mental health; (4) whether the test is invasive; (5) whether the test measures an employee’s performance of a task or measures his or her physiological responses to performing a task; (6) whether the test is normally given in a medical setting; and (7) whether medical equipment is used.

Enforcement Guidance, at 6; see also Kroll, 691 F.3d at 816 (same).[2]

The panel majority acknowledged that many of the factors–the first, second, sixth, and seventh–pointed towards understanding the urine test to be a medical examination. Slip op. at 12. The panel downplayed the test’s invasiveness because it is not invasive of the body, and stated – incorrectly – that even the Commission had not argued that urine testing was “invasive.” Slip op. at 12. In fact, the Commission did assert in its brief as amicus curiae that the testing program was invasive, see EEOC Amicus Brief at 20-21, but more critically, this Court and the Supreme Court also have recognized its invasiveness. “Although ‘urine tests are not invasive of the body,’” this Court has stated, “‘urinalysis intrudes upon “an excretory function traditionally shielded by great privacy.”’” Norris v. Premier Integrity Solutions, Inc., 641 F.3d 695, 699 (6th Cir. 2011) (quoting Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 626 (1989); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 658 (1995)); see also Skinner, 489 U.S. at 617 (recognizing both that “chemical analysis of [an individual’s blood] sample to obtain physiological data is a further invasion of the tested employee's privacy interest” and that “chemical analysis of urine, like that of blood, can reveal a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic. Nor can it be disputed that the process of collecting the sample to be tested . . . itself implicates privacy interests”). Moreover, the Enforcement Guidance identifies two types of urine tests (for alcohol use and for certain diseases) as tests that plainly comprise medical examinations.

The Guidance provides that “[i]n many cases, a combination of factors will be relevant in determining whether a test or procedure is a medical examination. In other cases, one factor may be enough to determine that a test or procedure is medical.” Enforcement Guidance, at 5. Here the Commission submits that all six factors point towards understanding the urine test as a medical examination.

Even if the design factor were understood as the panel majority reads it (i.e. to speak to the employer’s intent rather than the structure of the test), the panel majority’s treatment of the design factor as preeminent is in conflict with this Court’s decision in Kroll. In Kroll, this Court stated that in a case involving psychological counseling the design” factor was “arguably the most critical in this analysis.” 691 F.3d at 819. There, however, the design factor pointed towards holding the counseling a medical examination, and this Court held that none of the three other factors “is dispositive to our analysis.” Id. at 820. Thus this Court gave no single factor the ability to negate holding a test a medical examination, as the panel majority did here. Id. at 815-20. The panel majority’s elevation of the “design” element both conflicts with Kroll and, to our knowledge, stands alone as the only appellate decision to have so held.

CONCLUSION

For these reasons, the Commission respectfully requests that this Court grant the Plaintiff-Appellees’ petition.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

JENNIFER S. GOLDSTEIN

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] This Court recognizes 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 this Court “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.” Kroll, 691 F.3d at 815 (citations and internal alterations omitted).

[2] In addition, whether the employer is trying to determine the individual’s physical or mental health or impairments may also be considered. Slip op. at 13 (citing EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, No. 915.002 (Oct. 10, 1995)). As discussed above, this factor is an additional one, and does not go to the design factor.