AI Case Brief
Generate an AI-powered case brief with:
Estimated cost: $0.001 - $0.003 per brief
Full Opinion
OPINION
In 2007, Dura Automotive Systems, Inc., (âDuraâ) began testing employees at its manufacturing facility in Lawrenceburg, Tennessee, for substances appearing in both illegal drugs and in prescription medications packaged with warnings about operating machinery. Plaintiffs-appellees, none of whom has a disability under the Americans with Disability Act (âADAâ), worked at the facility and took prescribed medications for a variety of conditions. After these employees tested positive, Dura directed the employees to disclose their medications to Freedom From Self (âFFSâ), a third-party company hired to administer the drug tests. FFS reported the machine-restricted drugs to Dura, and Dura warned plaintiffs to discontinue using the offending medications. After retests came back positive, Dura terminated the plaintiffsâ employment.
Plaintiffs filed suit in district court, alleging, among other claims, that Dura violated ADA § 102(d)(4)(A), 42 U.S.C. § 12112(d)(4)(A), which prohibits employers from requiring âmedical examination[s]â or âmak[ing] inquiries of an employee as to whether such employee is an individual with a disability ... unless such examination or inquiry is shown to be job-related and consistent with business necessity.â The claim reduces to two essential inquiries: (1) whether the employer performed or authorized a medical examination or disability inquiry (âthe regulated conductâ); and if so, (2) whether the exam/inquiry was job-related and consistent with business necessity (âthe justifica
The jury found for all but one of the plaintiffs and awarded compensatory and punitive damages in excess of $870,000.
I.
A. The Drug-Testing Policy
Dura manufactures glass windows for cars, trucks, and buses at its Lawrence-burg facility. Between the end of 2006 and early 2007, Dura received reports of employeesâ drug and alcohol abuse. The facility experienced some property damage and a few workplace accidents attributable to employeesâ use of illegal and prescription drugs.
In response, Dura implemented a new substance-abuse policy, which appeared in the March 2007 revision of the employee handbook and a July 2007 document issued by the Human Resources Department. The new policy prohibited employees from âbeing impaired by or under the influenceâ of alcohol, illegal drugs, or legal drugsâ including prescription medications and over-the-counter drugsâto the extent that employeesâ use of such drugs endangered others or affected their job performance. (R. 241, Substance Abuse Policy at 2-3.) Dura reserved the right to enforce its policy via employee drug testing. The new policy provided that âtests showing positive indication of drug/alcohol use will be confirmedâ and that employees who tested positive could confidentially report to a medical review officer (âMROâ) their use of prescription medications that may have affected their test results. Dura claims that it designed its new policy to comply with the Tennessee Drug Free Workplace Program.
B. Implementation of Drug-Testing
The actual drug-testing differed from the written policy. In May 2007, Dura ordered a plant-wide drug screening of the Lawrenceburg facility's more than 400 employees. Dura instructed FFS to test for twelve substancesâamphetamines, barbiturates, benzodiazepines, cocaine, ecstasy, marijuana, methadone, methamphetamine, opiates, oxycodone, phencyclidine, and pro-poxypheneâsome of which appear in pre
FFS followed a set protocol after non-negative instant panel tests. First, it sent the samples to Quest Diagnostics for confirmatory testing to reveal which of the twelve substances triggered the non-negative result and the amount of that substance in the employeeâs system. Then, a Total Compliance Network MRO reviewed the chain of custody and interpreted the test results. In reviewing the test results, MROs questioned employees about medical explanations, sometimes requesting prescription information or documentation from the employeeâs physician. If the MRO determined that the employee had a valid reason for the non-negative result, including use of prescription medications, the MRO changed the final test result to negative. FFS forwarded these results to Dura, but Dura disregarded the MROâs revisions, opting instead to prohibit any employee use of machine-restricted drugs.
To that end, Dura instructed positive-testing employees to bring their medications to FFS for documentation. Affected employees produced their medications to FFS employee Lisa Peden, who identified the medications packaged with machine-operation warnings and reported those to Dura. Dura then informed the employees that it would terminate them if they continued to use these medications.
Plaintiffs-appelleesâVelma Sue Bates, Claudia Birdyshaw, Carolyn Wade, Richard White, Mark Long, and Jon Toun-gettâworked at the Lawreneeburg facility when Dura instituted its new substance abuse policy. All but Toungett tested positive during the plant-wide screening, and Toungett tested positive during a ârandomâ retest performed a few days after he informed Dura about a doctor appointment for back pain. Plaintiffs-appelleesâ machine-restricted medications included oxycodone, Cymbalta, Didrex, Lortrab (acetaminophen/hydrocodone), Soma, and Xanax. Though Dura warned most of these employees to discontinue using the machine-restricted medications, it called Long back to work to complete a project, only to terminate him after a ârandomâ retest that targeted other positive-testing employees. Dura terminated the other plaintiffs-appellees after positive retests with the exception of Wade, who discontinued her medication.
No one pressed plaintiffs-appellees for their underlying medical conditions, and Dura denies questioning them directly about their medications. Dura acknowledges, however, that Peden disclosed plaintiffs-appelleesâ machine-restricted medications, and its safety specialist, Jent, admitted that Dura had a âblanket policyâ of terminating employees who tested positive for such medications.
C. Procedural History
Plaintiffs-appellees sued Dura in federal district court in May 2008. Their amended complaint asserted claims under state and federal law, including the ADA. They alleged that Dura subjected them to unlawful drug testing to determine whether they took lawfully prescribed medications. They also averred that Dura refused to reassign them and terminated them on the basis of their disabilities or perceived disabilities.
The procedural history of this case implicates two ADA provisions: (1) § 12112(d)(4)(A), which prohibits employers from requiring medical examinations or making disability inquiries of employees unless such examinations or inquiries
On remand, plaintiffs moved for reconsideration in the district court, seeking reclassification of their drug-testing claim under subsection (d)(4). The district court granted plaintiffsâ motion, concluding:
(1) the courtâs previous holding that the plaintiffsâ claims challenging the drug testing protocol were properly asserted under Section 12112(b)(6) should not bar the plaintiffs from asserting claims under Section 12112(d)(4)(A); (2) the plaintiffsâ claims âfitâ within the scope of Section 12112(d)(4)(A); and (3) the plaintiffsâ lack of disability does not bar their claims here.
Thereafter, the parties filed dispositive motions on a variety of issues, with Dura challenging the availability of ADA damages for non-disabled plaintiffs and both parties seeking judgment as a matter of law on whether Duraâs test qualified as a(d)(4) medical examination or disability inquiry. The district court denied the motions.
In July 2011 the case went to trial. At trial, Dura moved for judgment as a matter of law, asserting that its drug testing qualified as neither a medical examination nor a disability inquiry. The district court denied the motion, instead deciding the (d)(4) regulated-conduct issue in plaintiffsâ favor. Dura renewed its motion for judgment as a matter of law at the close of evidence.
Dura unsuccessfully objected to a jury instruction informing the jury that FFS served as Duraâs agent for purposes of the drug tests. Rejecting Duraâs job-relatedness and business-necessity evidence, the jury found for plaintiffs-appellees on the (d)(4) justification issue and awarded compensatory and punitive damages. Dura then filed a post-trial motion for judgment as a matter of law and a new trial, renewing its objections to the (d)(4) classification and jury instruction, contesting the availability of ADA damages to non-disabled plaintiffs, and challenging the sufficiency of the evidence supporting the juryâs adverse verdict on the (d)(4) justification issue and punitive damages. The district court denied Duraâs motion, and Dura appeals.
II.
We begin with the district courtâs legal rulings on plaintiffs-appelleesâ (d)(4) claim, giving fresh review to its denial of Duraâs motion for judgment as a matter of law. See Tuttle v. Metro. Govât of Nashville, 474 F.3d 307, 315 (6th Cir.2007); Tisdale v. Fed. Express Corp., 415 F.3d 516, 527 (6th Cir.2005). âJudgment as a matter of law is appropriate when âviewing the evidence in the light most favorable to
Dura attacks the district courtâs (d)(4) classification on two fronts, first contending that a different ADA provisionâsubsection (b)(6), addressing qualification standardsâgoverns plaintiffs-appelleesâ claim, and second arguing that the evidence does not support the courtâs medical-examination and disability-inquiry rulings, or at a minimum creates an issue of fact. Only the second argument has merit.
A. Qualification Standard Under 12 U.S.C. § 12112(b)(6)
Dura correctly notes that the district court previously classified plaintiffs-appel-leesâ claims as arising under subsection (b)(6), which prohibits employers from discriminating against disabled employees by âusing qualification standards.â 42 U.S.C. § 12112(b)(6). Our decision in Bates I reveals why Dura presses this point: only âqualified individuals]â with disabilities can bring a(b)(6) claim, and none of the plaintiffs-appellees meet this requirement. See Bates I, 625 F.3d at 285-86. Their (b)(6) claims necessarily would fail.
Dura contends that the qualifications-standard framework applies because its drug testing applied to all employees, and ADA regulations define âqualification standardâ as âthe personal and professional attributes including the skill, experience, education, physical, medical, safety and other requirements which an individual must meet in order to be eligible for the position held or desired.â 29 C.F.R. § 1630.2(q). True enough, but nothing in subsections (b)(6) or (d)(4) renders these provisions mutually exclusive. As noted above, subsection (d)(4) prohibits employers from requiring medical examinations and disability inquiries âof an employee,â regardless of whether (s)he has a disability, and no one denies that plaintiffs-appellees were employees. Accordingly, the district court properly allowed the (d)(4) claim to proceed.
B. The Regulated Conduct of 12 U.S.C. § 12112(d)(1)(A): Medical Examinations & Disability Inquines
Whether Duraâs drug-testing constituted a âmedical examinationâ or âdisability inquiryâ under (d)(4) presents a close question because the ADA leaves these terms undefined. Though many ADA provisions âprotect! ] âqualified individuals with a disabilityâ from discrimination based on their disability,â EEOC v. Prevoâs Family Mkt., Inc., 135 F.3d 1089, 1093 (6th Cir.1998) (quoting 42 U.S.C. § 12112(a)), subsection (d)(4) protects all employees from medical inquiries, regardless of whether they have a qualifying disability. Kroll v. White Lake Ambulance Auth., 691 F.3d 809, 813
A covered entity shall not require a medical examination and shall not make 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, unless such examination or inquiry is shown to be job-related and consistent with business necessity.4
42 U.S.C. § 12112(d)(4)(A) (1991). This broad protection reflects Congressâs effort to âcurtail all questioning that would serve to identify and exclude persons with disabilities from consideration for employment.â Griffin v. Steeltek, Inc., 160 F.3d 591, 594 (10th Cir.1998); see also Harrison v. Benchmark Elecs. Huntsville, 593 F.3d 1206, 1213-14 (11th Cir.2010) (citing H.R.Rep. No. 101-485, pt. 2, at 1).
Dura argues that its drug-testing protocol sought no information about employeesâ physical or mental health, or even employeesâ general use of medications, but only whether the employees ingested illegal drugs or prescription medications with machine-operation warnings. Looking to the statutory language, one can easily imagine a medical examination consisting of a urine test to determine whether a patient has a health condition, but Duraâs testing, implemented by a third-party firm to avoid unnecessary disclosure to Dura, defies easy classification. A different ADA provision exempts testing for âillegal use of drugsâ from the prohibition on medical examinations, but that provision offers little guidance here, because Duraâs screening for prescribed medications exceeded its parameters. See 42 U.S.C. § 12114(d)(1) (â[A] test to determine the illegal use of drugs shall not be considered a medical examination.â).
Presented with this ambiguity, the parties direct our attention to the EEOCâs enforcement guidance, which defines âmedical examinationâ and âdisability-related inquiryâ and offers illustrative examples, none of which addresses this specific type of drug testing. We defer to these informal administrative interpretations âto the extent of [their] persuasive power,â E.E.O.C. v. SunDance Rehab. Corp., 466 F.3d 490, 500 (6th Cir.2006) (citing Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)), acknowledging that our previous cases recognize their âvery persuasive authority,â Kroll, 691 F.3d at 815 (citation omitted).
1. Medical Examination
The relevant EEOC guidance defines âmedical examinationâ as âa procedure or test that seeks information about an individualâs physical or mental impairments or health,â and identifies several factors bearing on this determination:
(1) whether the test is administered by a health care professional; (2) whether the test is interpreted by a health care professional; (3) whether the test is designed to reveal an impairment or physical or mental health; (4) whether the test is invasive; (5) whether the test measures an employeeâs performance of a task or measures his/her physiological responses to performing the task; (6) whether the test normally is given in a*575 medical setting; and, (7) whether medical equipment is used.
EEOC, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) Part B.2 (July 27, 2000) (hereinafter âDRI & ME Guidanceâ), available at http://www.eeoc. gov/policy/docs/guidance-inquiries.html.
âIn many cases, a combination of factors will be relevant in determining whether a test or procedure is a medical examination,â but in others âone factor may be enough.â Id.; see also Kroll, 691 F.3d at 815-16. Examples of medical examinations include vision tests, blood pressure and cholesterol screening, range-of-motion tests, and diagnostic procedures such as x-rays, CAT scans, and MRIs. The guidance also identifies two qualifying urine tests: (1) to discover alcohol use, and (2) to detect disease or genetic markers.
The district court bypassed the above medical-examination considerations, focusing instead on the guidanceâs prohibition of testing for alcohol use and the ADAâs limited drug-testing exemption. If the ADA prohibits urinalysis testing for the use of a legal substance (alcohol), the court reasoned, it must ban testing for other legal substances, like prescription medications. (See R. 237, Trial Tr. at 621-23.) While this logic has facial appealâ especially given alcoholâs association with vice and medicine with virtueâit fails here.
First, the guidance itself gives contrary instructions on alcohol testing. See DRI & ME Guidance Part 13.2 n. 31 (cross-referencing n. 26, which states that employers âmay maintain and enforce rules prohibiting employees from being under the influence of alcohol in the workplace and may conduct alcohol testing for this purposeâ upon reasonable suspicion); see also id. Part 13.1 (authorizing employers to ask employees whether they have been drinking); but see EEOC, Enforcement Guidance: Preemployment Disability-Related Questions & Medical Examinations (Oct. 10, 1995) (hereinafter âPreemployment Guidanceâ), available at http://www.eeoc. gov/policy/docs/preemp.html (explaining that an employer cannot give alcohol tests to job applicants because such tests âare medical, and there is no statutory exemptionâ).
Second, the ADAâs drug-testing exemption, while not applicable to plaintiffs-ap-pelleesâ prescribed medications, reaches further than the district court acknowledged. By permitting testing as to the âillegal use of drugs,â 42 U.S.C. § 12114(d)(1) (emphasis added)âas opposed to the use of illegal drugsâthe exemption contemplates circumstances where employees abuse medications not prescribed to them. See 29 C.F.R. § 1630.3(a)(2) (âIllegal use of drugs means the use of drugs the possession or distribution of which is unlawful under the Controlled Substances Act,â but âdoes not include the use of a drug taken under the supervision of a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal lawâ). So, while the illegality of use bears on whether the employer may invoke the drug-testing exception, the legality of a substance does not settle
The first, second, sixth, and seventh factorsâwhat one might call the opticsâtip the scales toward medical examination because FFS administered urine-based tests in a quasi-medical setting, with medical equipment, and health professionals interpreted the results. The fifth factor (task performance/physiological response) appears inapplicable. The fourth factor (invasiveness), meanwhile, offers little guidance. Though a urine sample certainly intrudes on a private bodily function, neither plaintiffs-appellees nor the EEOC argues that Duraâs tests were invasive, and we have recognized in other legal contexts that urine tests typically âare not invasive of the body.â Norris v. Premier Integrity Solutions, Inc., 641 F.3d 695, 699 (6th Cir.2011) (Fourth Amendment search, quoting Skinner v. Ry. Labor Execs.â Assân, 489 U.S. 602, 626, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)). That said, the EEOCâs Preemployment Guidance suggests that the âdrawing of blood, urine or breathâ may demonstrate invasiveness.
That brings us to the third factor, âarguably the most critical in this analysisâ: whether the test is designed to reveal an impairment or the employeeâs health. Kroll, 691 F.3d at 819. The Preemployment Guidance doubles down on this point, adding an eighth factor: whether âthe employer [is] trying to determine the applicantâs physical or mental health or impairments.â This emphasis on a diagnostic purpose aligns with the EEOC definition of medical-examination and links that term to its sister term, disability inquiries. See DRI & ME Guidance (looking to whether the âprocedure or test ... seeks information about an individualâs physical or mental impairments or healthâ); 42 U.S.C. § 12112(d)(4)(A) (prohibiting medical examinations and inquiries âas to whether such employee is an individual with a disability or as to the nature or severity of the disabilityâ). The âuncovering of [health] defects at an employerâs direction is the precise harm that § 12112(d)(4)(A) is designed to prevent.â Kroll, 691 F.3d at 819.
The test-design inquiry entails both subjective and objective considerations. Though not dispositive, âthe employerâs purpose must be considered in the larger factual context of a particular test or assessmentâs typical uses and purposes.â Id. at 816. â[W]hen an employerâs purported intentions mismatch the predominant purpose and design of a particular test or assessment, ... those intentions are accorded less weight and significance in the analysis.â Id. at 817. As with other anti-discrimination protections, this standard reflects that wrongdoers seldom admit their misdeeds.
Here, Dura denies using its drug-testing protocol to reveal impairments or health conditions, and a fair reading of the record supports this. Far from a âfree peek into a[n] ... employeeâs medical history,â see Connolly v. First Pers. Bank, 623 F.Supp.2d 928, 931 (N.D.Ill.2008), the evidence shows that Dura abstained from asking plaintiffs about their medical conditions, and only one plaintiff suggested that Dura directly asked her to identify the medications she was taking, albeit with conflicting testimony. (See R. 236, Bates Test, at 389-91.) Importantly, the plaintiffs-appellees offer no evidence showing how FFSâs urinalysis or post-test reporting of machine-restricted medications revealed information to Dura about plaintiffs-appelleesâ medical conditions. The urine test itself revealed only the presence of chemicalsâamphetamines, barbiturates, benzodiazepines, cocaine, ecstasy, marijuana, methadone, methamphetamine, opi
FFSâs post-test reporting, meanwhile, disclosed to Dura only the machine-restricted medications. When asked at oral argument how Duraâs third-party-administered test exposes information about employee health, the EEOC responded âit can,â noting that the presence of anti-seizure medication would divulge that specific condition. (O.A. at 34:40-35:00.) In the absence of specific evidence making this connection, we decline to elevate this possibility into the probability necessary for ruling on this issue as a matter of law. Although some prescription medications may reveal more than meets the eye because of brand-name recognition and ubiquitous marketing campaigns, an employer might struggle to discern medical conditions from the prescription drugs discovered here, which included a number of prescription pain relievers. Arguably, this attenuated testing protocolâwith a narrow focus on substances containing machine-operation restrictions, as opposed to all prescription drugsâreflects Duraâs effort to avoid obtaining information about employeesâ medical conditions and to avoid discriminating against all employees who take prescription drugs.
Of course, an employer cannot hire a third party to discriminate on its behalf. See 42 U.S.C. § 12112(b)(2) (prohibiting employers from âparticipating in a contractual ... relationship that has the effect of subjecting a[n] ... employee with a disability to the discrimination prohibited by this subchapterâ); see also DRI & ME Guidance Part B.l n. 20 (explaining that the âprohibition against making disability-related inquiries applies to ... indirect or surreptitious inquiriesâ). But, viewing the evidence in its favor, we cannot say as a matter of law that Dura used FFSâs drug tests to seek information about plaintiffs-appelleesâ medical conditions, or even that such revelations likely would result.
Still, much depends on Duraâs credibility. Inconsistencies between Duraâs written and actual drug-testing policies and its disparate treatment of individual employees may evince a pernicious motive. For instance, one plaintiff (Bates) claims that Dura asked her directly about her prescription medications and fired her for not reporting them, and Dura allowed another plaintiff (Long) to return to work despite testing positive. If credited, a jury could reject Duraâs explanation as a pretext for screening out potentially disabled employees. Moreover, plaintiffs-appellees may present evidence that the disclosure of machine-restricted medications typically reveals confidential health information, such that the jury could determine that the test targets information about an employeeâs physical or mental health, regardless of Duraâs intent.
This fact-sensitive inquiry presents a genuine issue of fact inappropriate for judgment as a matter of law. See Kroll, 691 F.3d at 819-20 (vacating the district courtâs grant of summary judgment to the employer, finding a genuine issue of fact regarding whether prescribing psychological counseling to an employee constituted an impermissible medical examination under § 12112(d)(4)(A)). The EEOC acknowledged as much during oral argument, conceding that there âmay be a fact questionâ regarding whether Duraâs drug tests were designed to reveal information about their employeesâ health. (O.A. at 33:40-34:00.) Plaintiffs-appellees argue that the majority of guidance factors compel a legal conclusion here, but, in the
2. Disability Inquiries
So too with § 12112(d)(4)(A)âs prohibition on âinquiries ... as to whether [an] employee is an individual with a disability or as to the nature or severity of the disabilityââwhat the EEOC has termed âdisability-related inquiries.â Plaintiffs-appellees devote little attention to this issue in their appellate briefing, but the EEOC directs us to an example appearing in the EEOC guidance: disability-related inquiries âmay include ... asking an employee whether s/he currently is taking any prescription drugs or medications, [or did] in the past, or monitoring an employeeâs taking of such drugs or medications.â DRI & ME Guidance Part B.l. Language in our recent decision Lee v. City of Columbus, Ohioâa case applying analogous provisions of the Rehabilitation Actâechoes this principle. 636 F.3d 245, 254 (6th Cir.2011) (âObviously, asking an employee whether he is taking prescription drugs or medication, or questions seeking] information about illnesses, mental conditions, or other impairments [an employee] has or had in the past[,] trigger the ADAâs (and hence the Rehabilitation Actâs) protections.â (internal citation and quotation marks omitted)). Yet, as with the medical-examination inquiry, the issue ultimately turns on contested issues of fact.
For starters, the guidanceâs definition of âdisability-related inquiryâ cuts against a broad application of the above example. The guidance defines disability-related inquiry as âa question (or series of questions) that is likely to elicit information about a disability.â DRI & ME Guidance Part B.l. Conversely, the guidance explains that â[questions that are not likely to elicit information about a disability are not disability-related inquiries and, therefore, are not prohibited under the ADA.â Id. Examples of permissible inquiries include asking about an employeeâs general well-being, a non-disability impairment such as a broken limb, and alcohol or illegal-drug use. EEOC Guidance Part B.l.
Dura denies asking employees about their general prescription-drug usage. Viewing the evidence in its favor, Duraâs third-party-administered test revealing only machine-restricted medications differs from directly asking employees about prescription-drug usage or monitoring the same, per the guidance example.
Next, the EEOC guidance lists prescription inquiries as conduct that âmayâ constitute a disability-related inquiry; it does not state a categorical rule. Id.; see also id. Question 8 (explaining that an employer â[generallyâ may not âask all employees what prescription medications they are takingâ because such questioning âis
May an employer ask applicants about their lawful drug use?
No, if the question is likely to elicit information about disability. Employers should know that many questions about current or prior lawful drug use are likely to elicit information about a disability, and are therefore impermissible at the pre-offer stage. For example, questions like, âWhat medications are you currently taking?â or âHave you ever taken AZT?â certainly elicit information about whether an applicant has a disability.
Preemployment Guidance (emphasis added).
The district court emphasized this likely-effects analysis in its two previous rulings denying judgment on this claim, stating that: (R. 116, Summ. J. Order at 11 n. 5 (quoting R. 97, Recons. Op. at 11 n. 4).)
â[B]ecause Duraâs general focus was on the feared consequences that the drugs would have on its employeesânot on the underlying maladyâthe [disability] inquiries prong does not appear to be a good âfitâ for the facts of this case.â Based on the courtâs review of the record and the unique facts of this case, it remains questionable whether the evidence at trial will show that Duraâs questioning was designed to or did elicit information about disabilities. However, as discussed herein, the evidence adduced at trial will determine the ultimate applicability of these terms to each plaintiff.
What changed? The courtâs sua sponte Rule 50 judgment for plaintiffs fails to explain the about-face (see R. 237, Trial Tr. at 622-23), and it does not appear that the evidence developed at trial obviated this genuine factual dispute. We agree with the district courtâs earlier analysis: a jury could reasonably conclude that Dura implemented a drug-testing policy in a manner designed to avoid gathering information about employeesâ disabilities.
The Lee dictum does not counsel otherwise. First of all, Lee did not apply these enforcement guidances to a drug test. It rejected the employeesâ Rehabilitation Act claim, finding that the employer could require employees returning from sick leave to provide a doctorâs note describing the ânature of the illness.â 636 F.3d at 257-59. Further, the principal case it cites for the proposition that an employer may not request an employeeâs prescription medications, Doe, held that such a demand presented an issue of fact regarding whether the employer discriminated against a job applicant who used psychotropic medications. Doe v. Salvation Army in U.S., 531 F.3d 355, 358-59 (6th Cir.2008).
A drug test that requires positive-testing employees to disclose medications to a third party, who then relays only machine-restricted medications to the employer, need not reveal information about a disability. As noted above, plaintiffs-appel-lees point to no evidence showing that such a limited disclosure likely reveals information about a disability. They conclusorily
3. Conclusion
Duraâs drug-testing protocol pushes the boundaries of the EEOCâs medical-examination and disability-inquiry definitions. It certainly goes further than what the ADAâs drug-testing exemption specifically permits, see 42 U.S.C. § 12114(d), but does not clearly fit the EEOCâs definitions and examples of prohibited conduct. The breadth of this ADA protection, which applies to all employees, cautions against our expansion of what constitutes prohibited conduct by legal interpretation. At the same time, an overly narrow interpretation of these protections could render § 12114(d)âs limited drug-testing exception the rule, undermining Congressâs remedial intent. See H.R. Rep. 101-485, pt. 2, at 79 (explaining that the drug-testing exemption âshould 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 has been givenâ (emphasis added)).
Accepting the EEOCâs fact-bound definitions of âmedical examinationâ and âdisability-related inquiryâ as reasonable, we conclude that a reasonable jury could decide these issues either way. We therefore vacate the district courtâs judgment and remand for a trial on the regulated-conduct issue: whether Duraâs drug testing constituted a medical examination or disability inquiry. On remand, the court shall instruct the jury in accordance with the statutory language and the EEOC guidance. The EEOC definitions of these terms shall be paramount, with the medical-examination factors and guidance examples illustrative of their meaning.
III.
Our remand of the (d)(4) claim requires us to address Duraâs remaining legal objections pertaining to jury instructions, weight of the evidence regarding business necessity, the availability of damages, and punitive damages.
A. Agency Jury Instruction
Dura takes issue with the following jury instruction regarding agency:
[A]s a matter of law, ... Freedom from Selfâand its employees were the agents of Dura. Therefore, with regard to the drug testing of the Plaintiffs, you are to consider any act of Freedom from Self and its employees to be an act of Dura.
The ADA definition of âemployerâ includes âany agent of such person,â 42 U.S.C. § 12111(5)(A), a relationship typically determined by common-law agency principles, Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 996 n. 7 (6th Cir.1997). But the challenged jury instruction here addresses a broader agency concept: whether FFSâs conduct necessarily constitutes Duraâs conduct for purposes of determining the design and likely effects of Duraâs drug tests. The answer to this question matters because FFS received more information about employeesâ prescription medications than Dura did.