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