Court Report

Christie M. Trenholme, Ursula A. Kienbaum, Michael A. Warner Jr. and Erin Fowler

Nov 24, 2014

1214-Cover.jpgDrug-Testing for Prescriptions May Not Violate ADA

Bates v. Dura Auto. Sys. Inc., 6th Cir., No. 11-6088.

An employer’s policy of testing all employees for prescription drugs that are packaged with warnings about operating machinery may not constitute an improper medical examination or an improper disability inquiry under the Americans with Disabilities Act (ADA), the 6th U.S. Circuit Court of Appeals held.

In 2007, Dura Automotive Systems, a manufacturer of automobile windows, began testing employees at its manufacturing facility for certain substances appearing in both illegal drugs and prescription medications that are packaged with warnings about operating machinery. Dura hired a third-party company called Freedom From Self (FFS) to administer the tests. FFS conducted the first round of drug tests at the facility. Positive tests underwent a second round of analysis to determine the specific substance present.

Medical review officers (MROs) who evaluated the results asked employees to provide medical explanations, sometimes requesting prescription information or documentation from the employee’s physician. If an MRO determined that the employee had a valid reason for the positive test result, the MRO changed the final test result to negative. FFS forwarded these results to Dura, but Dura disregarded the MROs’ revisions, opting to strictly prohibit any employee from using medications packaged with machine-operation warnings. Dura instructed employees who tested positive to bring their medications to FFS for documentation. Dura then informed these employees that they would be terminated if they continued to use the medications.

Professional Pointer

The use of a third party to administer drug testing and to conduct analysis of the results can help insulate an employer from running afoul of the ADA by filtering any medical information received and by ensuring that the employer receives only information relating to the prohibited substance.

The employees who were terminated for failing to discontinue use of the medications brought a lawsuit asserting claims under the ADA. The employees argued that Dura violated the ADA by: improperly requiring them to submit to a medical examination and making improper disability inquiries. The trial court held that Dura’s drug testing was an improper medical examination and an improper disability inquiry under the ADA. The appellate court vacated the trial court’s judgment and remanded the case for a trial.

With regard to whether the drug testing was a medical examination, the appellate court relied on the Equal Employment Opportunity Commission’s published guidance and focused on whether the drug test was designed to reveal an impairment or health condition. The court held that this fact-sensitive inquiry should be determined by a jury.

On one hand, the evidence supported Dura’s position that the drug-testing protocol was not used to reveal impairments or health conditions. Dura did not ask the plaintiffs about their medical conditions, and there was no evidence that third-party FFS had revealed information to Dura about the plaintiffs’ medical conditions; rather, all that was reported to Dura was the presence of one of the substances. On the other hand, the court found that much depended on Dura’s credibility, as there were inconsistencies between Dura’s written and actual drug-testing policies and evidence of disparate treatment of individual employees. For example, one plaintiff claimed that Dura had fired her but allowed another plaintiff to return to work despite testing positive.

Similarly, with regard to whether the drug testing was a disability inquiry, the appellate court held that a jury could reasonably conclude that Dura implemented the drug-testing policy in a manner designed to avoid gathering information about employees’ disabilities. The court therefore vacated the trial court’s ruling.

The appellate court also held that the trial court improperly instructed the jury that FFS was an agent of Dura. FFS had received more information about the employees’ prescription medications than Dura had; thus, the court held that the jury should not be instructed to assume that because FFS obtained additional information, Dura sought that information.

The court also noted that Dura may have used FFS to insulate itself from the proscribed information.

By Christie M. Trenholme, an attorney with Marr Jones & Wang, the Worklaw® Network member firm in Honolulu.

Material Changes to Job Duties Can Support Bias Claim

Thompson v. City of Waco, 5th Cir., No. 13-50718.

The 5th U.S. Circuit Court of Appeals allowed an employee to proceed with race discrimination claims against his former employer when, although the worker suffered no change in job title, pay or benefits, his job duties were significantly limited.

Allen Thompson worked for the City of Waco, Texas, as a police detective. The city suspended Thompson, who is black, and two other detectives, who are white, for falsification of time records. Upon Thompson’s return to work, the city imposed certain restrictions on his job duties that were not applied equally to the white detectives. For example, Thompson was prohibited from searching for evidence without supervision, logging evidence and making an affidavit in a criminal case.

Thompson sued the city for race discrimination under Title VII of the 1964 Civil Rights Act and 42 U.S.C. §1981, alleging that the city’s post-suspension job restrictions constituted an unlawful demotion.

To establish a claim for race discrimination under Title VII and Section 1981, an employee must establish that he was subject to an “adverse employment action” that affected the terms and conditions of his employment.

Professional Pointer

It is a good idea to develop and maintain a practice of reviewing all employment actions prior to implementation—even seemingly benign changes to an employee’s job responsibilities—for consistency with company policy and past practice, and for equal application to similarly situated employees.

The 5th Circuit found that the City of Waco’s restrictions to Thompson’s job duties were so significant and material that they rose to the level of an adverse employment action. The court found that the city had rewritten and restricted Thompson’s job description to such an extent that he no longer occupied the position of a detective. By restricting Thompson from performing the essential duties of his position, a jury could find that Thompson had suffered the functional equivalent of a demotion.

By Ursula A. Kienbaum, an attorney in the Portland, Ore., office of Ogletree Deakins.

Prompt Response to Alleged Harassment Averts Liability

Muhammad v. Caterpillar Inc., 7th Cir., No. 12-1723.

An employer that quickly responded to complaints of racial and sexual harassment and took immediate steps to keep the harassment from reoccurring could not be held liable for the underlying harassment, the 7th U.S. Circuit Court of Appeals held.

In 2009, Warnether Muhammad sued his employer, Caterpillar Inc., alleging that he was subject to a hostile work environment based on racial and sexual harassment in violation of Title VII of the Civil Rights Act of 1964. The suit stemmed from events that occurred in 2006 when Muhammad was subject to offensive oral and written comments about his race and perceived sexual orientation.

Professional Pointer

This case reminds employers of the importance of promptly and effectively addressing alleged incidents of harassment.

There were three reported incidents of offensive oral comments made to Muhammad by his co-workers. Muhammad reported each incident either to the company’s HR department or to his supervisor, who then reported the incident to HR.

In addition to the oral comments, there were three instances in which offensive statements about Muhammad were written on the walls of the restroom nearest his workstation. Each time Muhammad reported the graffiti, Caterpillar immediately painted over it. After the second occurrence, Muhammad’s supervisor addressed the graffiti with all of the co-workers on Muhammad’s shift during a shift meeting. When the graffiti appeared a third time, the supervisor warned all employees that “anyone caught defacing the walls would be fired.” After this warning, the graffiti stopped.

On appeal, the 7th Circuit upheld the trial court’s dismissal of the complaint, stating that Muhammad’s claim of sexual harassment failed because Title VII does not recognize discrimination based on sexual orientation. Regarding the comments based on race, the court stated that Title VII only requires an employer to “take action reasonably calculated to stop unlawful harassment.” Because Caterpillar’s responses permanently ended the harassment complained of, it could not be liable.

By Michael A. Warner Jr. and Erin Fowler, attorneys with Franczek Radelet, the Worklaw® Network member firm in Chicago.

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