Industry News

Employee Alleges Discrimination

Facts: John Harrison was working for a temporary placement agency and assigned to work at Benchmark Electronics Huntsville, Incorporated (BEHI), where he identified and repaired problems with electronic boards. Harrison suffered from epilepsy since the age of two and took barbiturates in order to control his medical condition. After working for six months as a temporary employee, Harrison applied for a full-time position at the suggestion of his supervisor. After Harrison was approved for the position he was told to take a drug test in order to complete the employment process. Harrison’s test came back positive for barbiturates and he was told to speak with a human resources officer to whom he explained his disability and prescription. Though Harrison’s test was eventually cleared he was told that he should not return to BEHI and would not be offered full-time status because he had a performance and attitude problem.

Harrison sued BEHI claiming that the company violated federal laws that protected disabled Americans in the workforce. BEHI filed a motion for summary judgment arguing that its medical inquiry practices did not violate federal law, and the trial court granted the motion. Harrison appealed.

Decision: Under federal law it is unlawful for an employer to conduct a medical examination of an applicant or to make inquiries as to whether an applicant is an individual with a disability or as to the nature or severity of such disability. Yet, an employer is allowed to require an applicant to take a pre-employment drug test and to ask follow-up questions in response to a positive drug test. Though follow-up questions are allowed, the employer is still prohibited from asking any disability-related questions. The trial court held that BEHI did not violate the federal protective laws when it questioned Harrison about his positive drug test. While the appellate court agreed with the general principle it also noted that the trial court failed to acknowledge that BEHI may have violated prohibitions against asking more specific disability-related inquiries. Here, the court determined that while BEHI was permitted to ask follow up questions to ensure that Harrison’s positive drug test was due to a lawful prescription, a jury might reasonably find the questions exceeded the scope of permitted questioning.

Implications: Generally, a private actor or corporation cannot be sued under federal or state constitutional violations. However, all employers are prohibited from making employment decisions that are based on, in any part, a motivation to discriminate against disabled individuals. Businesses should take steps to ensure that their policies and staff members do not violate state and federal laws protecting individuals with disabilities. Harrison v. Benchmark Elecs. Huntsville Inc., No. 08-16656 (U.S. Court of Appeals for the Eleventh Circuit Jan. 11, 2010) Source: Security Law Newsletter, published monthly by Strafford Publications, Atlanta, GA. www.straffordpub.com, phone: 800-926-7926 ext. 10 or email: custserv@straffordpub.com.

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