A non-disabled applicant for employment can proceed to trial under the Americans with Disabilities Act based on a company’s unlawful pre-employment medical inquiry, according to a recent decision by the Eleventh Circuit Court of Appeals, Harrison v. Benchmark Electronics Huntsville, Inc. (11th Cir. January 11, 2010).

The case arose when John Harrison was working as a temporary employee for Aerotek, which assigned Harrison to work at Benchmark Electronics Huntsville, Inc. (BEHI). Harrison has epilepsy and takes barbiturates to control his condition. Harrison applied for permanent employment at BEHI and consented to a drug test. When his drug test came back positive, his supervisor learned about it and was in the room when Harrison explained his epileptic condition to the medical review officer (MRO). Soon thereafter, his supervisor decided not to extend an offer to Harrison and asked Aerotek not to return Harrison to BEHI.

Harrison filed a charge with the EEOC, which determined that Harrison was not disabled. Harrison then sued BEHI under the ADA, claiming that BEHI engaged in an unlawful pre-employment medical inquiry under the ADA. The district court granted summary judgment to BEHI. The court ruled that, even assuming Harrison had a right to sue based on a pre-employment medical inquiry, BEHI was entitled to ask whether he had a legitimate use for such medication.

A panel of the Eleventh Circuit Court of Appeals reversed the district court’s decision. At the pre-offer stage, the court noted, an employer may not conduct a medical examination or make inquiries of a job applicant as to whether the applicant is an individual with a disability, or as to the nature or severity of such disability. An employer may only inquire into the ability of an applicant to perform job-related functions. Joining several other circuit courts of appeal, the court held that this prohibition is not limited to disabled applicants. “Allowing non-disabled applicants to sue will enhance and enforce Congress’s prohibition,” the court reasoned. “Moreover, a contrary reading would vitiate [the Act’s] effectiveness.” Quoting an earlier Tenth Circuit decision, the court wrote that “[i]t makes little sense to require an [applicant] to demonstrate that he has a disability to prevent his [potential] employer from inquiring as to whether or not he has [one].”

The court then addressed the merits of Harrison’s claim. First, the court noted that the ADA recognizes an exemption to the pre-employment inquiry rule for drug tests. Not only are drug tests permissible at the pre-offer stage, but so are follow-up questions in response to a positive drug test, such as: “What medications have you taken that might have resulted in this positive test result?” However, disability-related questions are still prohibited.

The court ruled that under the circumstances, i.e. because Harrison’s supervisor told him that his drug test was positive, because Harrison disclosed his prescription, and because the supervisor was present in the room when Harrison explained his medical condition to the MRO, “a reasonable jury could infer that [the supervisor’s] presence in the room was an intentional attempt likely to elicit information about a disability in violation of the ADA’s prohibition against pre-employment medical inquiries.” The court also ruled that a reasonable jury could infer that the supervisor based his decision not to hire Harrison on information gleaned from an improper medical inquiry.

For employers in the Eleventh Circuit, the Harrison case offers a couple of valuable lessons. First, employers must not make prohibited pre-employment medical inquiries of any applicant, including applicants that are apparently or obviously not disabled. Harrison makes clear that any applicant is a potential plaintiff under the ADA.

Second, employers must be extremely careful with the handling of information obtained from drug tests. As Harrison illustrates, there is a fine and arguably fuzzy line between permissible follow-up questions following a positive drug test, and impermissible disability-related questions. To avoid crossing this line, employers may wish to consider administering drug tests only after making a conditional offer of employment to applicants. Once a conditional job offer is made, the employer may ask disability-related questions as long as this is done for all entering employees in that job category.