State Bar of Michigan E-Journal #57944
Bates v. Dura Auto. Sys., Inc.
The United States Court of Appeals for the Sixth Circuit held that: “the district court erred by concluding as a matter of law that the defendant-employer’s (Dura) drug-testing protocol constituted either a “medical examination” or a “disability inquiry” under the ADA. The protocol included testing for prescription drugs that warn against “operating machinery.” The ADA does not define the terms “medical examination” or “disability inquiry” under § 12112(d)(4), so it was “a close question” whether Dura’s drug-testing violated the statute. Subsection (d)(4) “protects all employees from medical inquiries, regardless of whether they have a qualifying disability.” Dura’s program, which was implemented “by a third-party firm to avoid unnecessary disclosure to Dura,” was difficult to classify. The court looked to the EEOC’s “Enforcement Guidance” to define the necessary terms. It then concluded that “the test-design factor and the EEOC definition of medical examination would permit a reasonable jury to decide the matter in Dura’s favor. If one credits Dura’s explanation and the objective evidence shows its drug-testing protocol is unlikely to reveal employees’ medical information, then the testing does not qualify as a medical examination under the EEOC definition.” Section 12112(d)(4)(A) also prohibits “disability-related inquiries” – whether an “employee is an individual with a disability” or “the nature or severity of the disability.” After reviewing the EEOC Guidance and Dura’s policies, the court concluded that “Dura’s third-party-administered test revealing only machine-restricted medications differs from directly asking employees about prescription-drug usage or monitoring the same . . . .” The court concluded that “a jury could reasonably conclude that Dura implemented a drug-testing policy in a manner designed to avoid gathering information about employees’ disabilities.” It noted that “Dura’s drug-testing protocol pushes the boundaries of the EEOC’s medical-examination and disability-inquiry definitions. It certainly goes further than what the ADA’s drug-testing exemption specifically permits . . . but does not clearly fit the EEOC’s definitions and examples of prohibited conduct.” A reasonable jury “could decide these issues either way.” Thus, the court vacated the district court’s judgment and reversed its ruling that “Dura’s drug-testing protocol constituted either a medical examination or disability inquiry” under § 12112(d)(4) as a matter of law, and remanded for a trial on that issue. On remand, the district court must “instruct the jury in accordance with the statutory language and the EEOC guidance.” The court also vacated the related punitive-damages award and remanded for a new trial on that issue.