## Facts

- John Harrison worked as a temporary “debug tech” at Benchmark Electronics Huntsville, Inc. (BEHI) through Aerotek and sought permanent employment with BEHI.
- Harrison had epilepsy and took barbiturates, but the EEOC determined he did not qualify as “disabled” under the ADA’s definition.
- BEHI invited favored temporary workers to apply for permanent jobs and required a pre-employment drug test and background check.
- After Harrison applied for permanent employment and consented to a drug test, BEHI learned the test was positive pending review by a medical review officer (MRO).
- Harrison’s supervisor, Don Anthony, informed Harrison of the positive result; Harrison said he took prescription medication.
- Anthony arranged a call with the MRO and remained present while Harrison answered questions including how long he had been “disabled,” what medication he took, and how long he had taken it; Harrison disclosed he had epilepsy and used barbiturates to control it.
- The drug test was later cleared and Harrison was “cleared for hire,” but Anthony directed HR not to prepare an offer letter and asked Aerotek not to return Harrison to BEHI.
- Aerotek told Harrison he would not return due to alleged performance/attitude problems and an alleged threat to Anthony, and Aerotek ultimately terminated him.
- Harrison filed an EEOC charge asserting ADA violations, including an improper pre-offer medical inquiry theory.

## Issues

1. Whether an applicant who is not “disabled” under the ADA may bring a private action for damages under 42 U.S.C. § 12112(d)(2) based on an allegedly improper pre-offer medical inquiry.
2. Whether drug-test-related questioning, particularly when conducted in the presence of a supervisor who is an employment decisionmaker, can constitute an impermissible “medical inquiry” under § 12112(d)(2) rather than permissible drug-test follow-up.

## Decision

- The Eleventh Circuit reversed the district court’s summary judgment for BEHI on the § 12112(d)(2) improper-medical-inquiry claim and remanded.
- The court held that a private right of action under § 12112(d)(2) is available regardless of whether the plaintiff is “disabled” under the ADA.
- The court held that the record permitted a reasonable jury to find BEHI’s process exceeded permissible drug-test follow-up and amounted to a prohibited pre-offer medical inquiry, given the disability-focused questioning and the supervisor’s presence.

## Legal Principles

- ADA § 12112(d)(2)(A) bars pre-offer medical examinations and inquiries that ask whether an applicant has a disability or the nature or severity of any disability.
- The protections of § 12112(d)(2) are not limited to “qualified individuals with disabilities”; the prohibition regulates employer conduct toward applicants generally.
- Although drug tests for illegal drug use are permitted and are not “medical examinations,” associated questioning may violate § 12112(d)(2) if it elicits disability-related information beyond what is necessary to explain a positive result.
- Disclosure of disability-related information to an employment decisionmaker at the pre-offer stage, including by allowing a supervisor to overhear MRO questioning, may support a § 12112(d)(2) claim and defeat summary judgment when material facts are disputed.

## Conclusion

The Eleventh Circuit held that any job applicant may sue under ADA § 12112(d)(2) for improper pre-offer medical inquiries and that a jury could find BEHI’s drug-test follow-up became an unlawful inquiry where disability-related questions were asked and the applicant’s supervisor overheard the disclosures before an offer was made.


Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206 (11th Cir. 2010)