Court Report

Any employee can bring ADA claim of improper medical inquiry; pharmaceutical sales rep FLSA-exempt; more.

Apr 1, 2010

0410cover.gifAny Employee Can Bring ADA Claim of Improper Medical Inquiry

Harrison v. Benchmark Electronics Huntsville Inc., 11th Cir., No. 08-16656 (Jan. 11, 2010).

In a case of first impression, the 11th U.S. Circuit Court of Appeals has held that an employee can sue an employer for prohibited medical inquiry under the Americans with Disabilities Act (ADA), regardless of whether the person has a disability.

Professional Pointer: The Americans with Disabilities Act has an exemption for pre-employment drug tests and lets employers validate test results by asking about lawful drug use or explanations for positive results other than illegal use of drugs. However, disability-related questions are prohibited. While an employer may follow up in response to a positive drug test, there are limits on the types of information that can generally be elicited by someone other than a medical officer.

The act makes it illegal for employers to discriminate against individuals with disabilities. To that end, the ADA includes a provision that, prior to an actual offer of employment, an employer "shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability." The only inquiry that can be made is whether the applicant is able to perform job-related functions.

John Harrison was assigned as a temporary employee with Benchmark Electronics Huntsville Inc. (BEHI) in 2005, working to repair and test electronic boards. At that time, if a supervisor believed that a temporary employee would meet the company’s needs, the supervisor could invite that individual to submit an application for regular employment. The application process required undergoing a drug test and background screening.

In May 2005, Harrison submitted an employment application at the suggestion of his supervisor, Don Anthony, and underwent the required drug screening and background check. At that point, Harrison had never been informed of any performance deficiencies or problems with his work attitude. Harrison’s drug screening came back positive.

Under BEHI’s policy, this finding required review by a medical review officer (MRO).

Anthony was contacted by a member of BEHI’s HR department and was asked to "send [Harrison] her way." Although HR did not tell Anthony about the positive drug test, he discovered that information on his own and informed Harrison that the test had come back positive for barbiturates.

Harrison stated that he had a prescription for the drug, and Anthony asked him to produce it. Anthony immediately called the MRO and passed the phone to Harrison. Anthony remained in the room while Harrison answered a series of questions from the MRO, explaining that he had been diagnosed with epilepsy at age 2 and took barbiturates to control the effects of that disease.

Shortly afterward, Harrison was informed by the MRO that his drug test had been cleared. However, Anthony told HR not to prepare an offer letter for Harrison. He further asked the temporary agency not to return Harrison to BEHI, stating that Harrison had "performance and attitude problems." Harrison immediately was fired from the agency.

Harrison filed a charge with the U.S. Equal Employment Opportunity Commission. The commission determined that Harrison’s epilepsy did not rise to the level of "disability" under the ADA. He then filed a lawsuit against BEHI under the act, alleging that the company had engaged in an improper medical inquiry. BEHI moved for summary judgment, which was granted by the district court.

That decision was reversed by the 11th Circuit on appeal. The primary basis for the reversal was the appellate court’s answer to the question of whether a nondisabled individual can state a private cause of action for a prohibited medical inquiry under the ADA.

Although the 11th Circuit had not previously addressed that issue, it explicitly recognized that a plaintiff may sue an employer about a prohibited medical inquiry, regardless of whether the person has a disability. It reasoned—consistently with sister circuits that have specifically addressed the question—that the act precludes inquiries with respect to any applicant who has not yet received a job offer, whether or not the individual has an ADA disability.

By Maria Greco Danaher, an attorney with the firm of Ogletree Deakins in Pittsburgh.

Pharmaceutical Sales Rep FLSA-Exempt

Smith v. Johnson & Johnson, 3rd Cir., Nos. 09-1223, 09-1292 (Feb. 12, 2010).

The 3rd U.S. Circuit Court of Appeals held that a senior pharmaceutical sales representative was an administrative employee exempt from the overtime requirements of the Fair Labor Standards Act (FLSA).

Professional Pointer: Job titles alone do not determine the applicability of the FLSA’s exemptions. In deciding whether an employee is exempt, employers must consider all of the factors listed under the FLSA.

Patty Lee Smith was employed at a Johnson & Johnson subsidiary as a sales representative. Her position required travel to various doctors’ offices and hospitals where she extolled the benefit of one of Johnson & Johnson’s pharmaceutical drugs to the prescribing doctors.

Johnson & Johnson gave Smith a list of target doctors that it created and told her to complete an average of 10 visits per day. Smith enjoyed a great deal of freedom and responsibility in her position, as she was unsupervised 95 percent of the time. She earned a base salary of $66,000 but was not paid overtime.

Smith filed suit, seeking overtime pay under the FLSA. The lower court granted the company summary judgment. Smith appealed.

The 3rd Circuit concluded that the administrative employee exemption applied to Smith because she executed nearly all of her duties without direct oversight. In fact, Smith described herself as the manager of her own business who could run her own territory as she saw fit. The 3rd Circuit noted, however, that court rulings in FLSA cases are highly fact-specific. 

By Amy Onder, general counsel of iXP Corp. in Cranbury, N.J.

Adverse Action Based on Nonconforming Behavior Is Impermissible

Lewis v. Heartland Inns of America LLC, 8th Cir., No. 08-3860 (Jan. 21, 2010).

The 8th U.S. Circuit Court of Appeals revived the Title VII claims of a female hotel desk clerk who was fired after a company decision-maker complained that the employee lacked the pretty and "Midwestern girl" look desirable in a front desk employee.

Brenna Lewis began working for Heartland Inns of America in July 2005, starting out as a night auditor. In that job, Lewis worked the front desk from 11 p.m. to 7 a.m., doing it well enough to receive two merit-based pay raises and positive customer feedback.

Professional Pointer: An adverse action against an individual because he or she does not fit within sexual stereotypes is unlawful sex discrimination because that discrimination would not have occurred but for the individual’s sex.

In December 2006, Lewis’ manager, Lori Stifel, received permission over the telephone from the company’s director of operations, Barbara Cullinan, to offer Lewis a daytime shift position on the front desk from 7 a.m. to 3 p.m. Lewis accepted and took over that position at the end of December.

Although Cullinan initially had approved Lewis’ move to the day shift, her attitude changed after she met Lewis in person. At that point, Cullinan told Stifel she wasn’t sure Lewis was a "good fit" for the position, as Lewis lacked the "Midwestern girl" look that Cullinan felt was necessary at the front desk.

By her own admission, Lewis is "slightly more masculine," does not wear makeup, and dresses in men’s button-down shirts and slacks. She has been mistaken for a male and has been referred to as "tomboyish." However, while Cullinan felt that front desk staff should be "pretty," the front desk job description in Heartland’s personnel manual does not mention appearance.

Cullinan ordered Stifel to return Lewis to the overnight shift. When Stifel refused, Cullinan insisted that Stifel resign. Cullinan then required Lewis to re-interview for the day shift position, even though Lewis had held the position successfully for more than a month. Lewis protested but attended the interview. Three days later, Lewis was fired.

In its termination letter, Heartland stated that Lewis was "hostile" toward company policies and had attempted to "thwart" the interview process. Lewis then filed a lawsuit asserting that Heartland fired her for not conforming to sexual stereotypes and claiming that such conduct violated Title VII of the Civil Rights Act of 1964.

The lower court disagreed and entered summary judgment in favor of the company. The 8th Circuit reversed, holding that sexual stereotyping can violate Title VII when it influences employment decisions.

By Maria Greco Danaher, an attorney with the firm of Ogletree Deakins in Pittsburgh.

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