Non-Disabled Worker Allowed to Pursue ADA Suit

January 13, 2010 ( – A temporary worker at an electronics manufacturing company can sue the employer for asking him prohibited questions about his health, even if the employee is not considered legally disabled, a court has ruled.

The 11th U.S. Circuit Court of Appeals declared that John Harrison, who has taken barbiturates to control his epilepsy since he was two years old, should be allowed to pursue his suit against Benchmark Electronics Huntsville, Inc. (BEHI).

Harrison charged that the employer’s handling of his application for a full-time position violated the Americans with Disabilities Act (ADA). He contended BEHI did not hire him for a full-time position – and eventually caused him to be fired from a temp agency – because of a perceived disability. His epilepsy was not considered a disability under federal law.

Circuit Judge Eugene E. Siler, Jr., writing for the appellate court, said the 11th Circuit had decided to join a number of other federal appellate courts around the country by formally recognizing the right of a person who is not legally disabled to nevertheless pursue an ADA suit under 42 U.S.C. 12112(d)(2) with allegations they did not get hired because of a perceived disability.

Siler pointed out that the ADA section involved in Harrison’s case bars employers from requiring a medical exam or pose questions to an applicant about whether the person is disabled (or the extent of the disability) before extending a job offerThe employer is only permitted to ask whether the applicant can “perform job-related functions,” Siler continued.

After deciding Harrison should be allowed to continue pursuing the ADA suit, Siler threw out a lower court’s decision that had dismissed the case at BEHI’s request.

According to Siler’s ruling, a drug test administered while Harrison was being considered for a full-time job detected the barbiturates he was taking under a doctor’s prescription. Harrison was summoned to a meeting where he was questioned about his prescription by a company representative while the hiring manager was in the room.

Even though a company medical officer eventually accepted the drug test results, the hiring manager did not extend the full-time job offer to Harrison and, in fact, asked Harrison’s temporary employment agency not to send him back to BEHI.  The employment agency eventually fired Harrison.

BEHI has contended it did not hire Harrison because he had threatened the hiring manager and because of concerns over his performance.

The 11th Circuit ruling is available here