THE AMERICAN WITH DISABILTIES ACT APPLIES TO JOB APPLICANTS AS WELL AS EMPLOYEES WITH REFERENCE TO IMPROPER PRE-EMPLOYMENT MEDICAL INQUIRIES

Joyce E. Kitchens Senior Partner

Harrison v. Benchmark Elecs. Huntsville, Inc., 2010 U.S. App. LEXIS 632 (11th Cir. Ala. 2010)
 

Plaintiff sued based on improper pre-employment medical inquiry, pursuant to 42 U.S.C.S. § 12112(d)(2). For the first time, the Eleventh Circuit held that this statute refers to any “applicant” who has not yet received a job offer, not just to those with a qualified disability. Employers are prohibited from conducting questioning that would exclude those with disabilities from employment. Here, summary judgment was reversed against an epileptic who testified positive for barbiturates where the employer asked follow-up questions in the presence of the hiring official about the medication. There is an exemption for positive drug tests; that is, the employer is allowed to ask follow-up questions such as 'What medications have you taken that might have resulted in this positive test result? Are you taking this medication under a lawful prescription?” However, in this case the court held that the questions asked in this case could be viewed by the jury as exceeding the likely-to-elicit prohibited information about a disability, in part because these questions were allegedly asked in the presence of the hiring official.