6th Cir: Must be disabled to pursue a discrimination claim under portion of ADA

The 6th Circuit Court of Appeals (Michigan, Ohio, Kentucky, Tennessee) ruled yesterday that employees challenging an employer's drug testing policy on the basis that it discriminates against those with a disability must, in fact, have a disability to pursue such a claim. In Bates et al v. Dura Automotive Systems, the Court found that employees who were terminated because they consumed drugs containing substances prohibited under Dura's drug testing policy were not "disabled" under the meaning of a particular section of the Americans With Disabilities Act. The section cited by the employees stated that it was discriminatory for a "covered entity" to use qualification standards, employment tests, or screening criteria that eliminated individuals with disabilities unless it was for a job-related and business necessity reason.

In finding for the employer on this specific issue of law, the Court held that an employee who was not first found to be disabled could not bring a claim under that section of the ADA. (Keep in mind that other sections of the ADA do protect individuals who are presumed to have a disability and/or associated with someone who has or is presumed to have a disability.) Accordingly, Dura's drug testing policy that prohibited substances commonly found in drugs such as Xanax, Lortab and Oxycodone was not instituted or carried out in violation of the ADA.

While this seems like a triumph for employers, it is important to note that the case was filed prior to the passage of the Americans with Disabilities Act Amendments Act of 2008. The opinion in Dura focused on the language of the old ADA and the construction given to that language, noting in particular that to limit the application of the section at issue to "only cover disabled individuals is not an absurd construction or inconsistent with the intent of the statute." Since Congress was clear in enacting the Amendments that the ADA should be given the broadest construction possible, it is likely that a different result would have been achieved under the Amendments; the employees stand a greater chance of being deemed "disabled" under the Amendments. (Courts had held that the Amendments were not to be applied retroactively.)

Employers who have not revisited their drug-testing policies since the enactment of the Amendments would be wise to do so. An employer such as Dura could have still prevailed if it would have been able to show that the substances prohibited were out of business necessity and job-related.

Read the full opinion here.