Justices Deny Review of ADA Decision Upholding Use of Fitness for Duty Exam

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By Kevin P. McGowan  

Nov. 18 --The U.S. Supreme Court Nov. 18 declined to review a federal appeals court's ruling affirming that Coca-Cola Co. did not violate the Americans with Disabilities Act by requiring a call center worker who alarmed his supervisor by his alleged workplace conduct to undergo a fitness for duty examination (Owusu-Ansah v. Coca-Cola Co., U.S., No. 13-460, cert. denied 11/18/13).

Franklin Owusu-Ansah, a native of Ghana, was working as a quality assurance specialist in December 2007 when he complained to manager Tanika Cabral about alleged national origin discrimination. Cabral was alarmed by Owusu's behavior during their meeting at the Dunwoody, Ga., office, alleging he banged his fists on a table and said “someone is going to pay.” Owusu denied he engaged in such conduct.

After Cabral reported Owusu's alleged conduct to her supervisor, Coca-Cola placed Owusu on paid leave and required him to undergo a fitness for duty examination as a condition of returning to work. Owusu spoke with an independent consulting psychologist, who in turn recommended that Owusu visit a psychiatrist.

Owusu did so, but he refused to answer the psychiatrist's questions about Owusu's job or workplace issues or to sign a release allowing the psychiatrist to discuss his impressions of Owusu with the consulting psychologist. Coca-Cola ultimately cleared Owusu for return to work after he completed a written personality test that showed him to be “within normal limits.”

Owusu sued under an ADA provision that bars an employer from requiring a “medical examination” or making “inquiries of an employee” regarding whether the individual has a disability unless the employer can prove the medical exam or inquiries are “job-related” and “consistent with business necessity.”

A federal district court in Georgia found in favor of Coca-Cola. The U.S. Court of Appeals for the Eleventh Circuit affirmed, ruling that Coca-Cola had proven Owusu's fitness for duty exam was job-related and consistent with business necessity ( 715 F.3d 1306, 2013 BL 124891, 27 AD Cases 1533 (11th Cir. 2013); 31 HRR 519, 5/20/13).

Ruling Conflicts With EEOC Rules

In seeking review, Owusu said the Eleventh Circuit's reading of “job-related and consistent with business necessity” conflicts with the Equal Employment Opportunity Commission's interpretive regulations and enforcement guidance under the ADA.

The Eleventh Circuit's opinion mentioned the EEOC guidance that interprets “job-related” and “consistent with business necessity,” which requires an employer to have “a reasonable belief based on objective evidence” that “an employee's ability to perform essential job functions will be impaired by a medical condition” or that the employee “will pose a direct threat” to the health or safety of himself or others because of a medical condition.

But rather than give the EEOC regulations and guidance the deference required under Chevron USA Inc. v. Natural Resources Defense Council ( 467 U.S. 837 (1984)), the Eleventh Circuit “downgraded” the deference owed to the EEOC rules and guidance, and the court interpreted the relevant ADA provisions inconsistently with the EEOC directives, Owusu said.

In particular, Owusu said no objective evidence indicates he was unable to perform his essential job functions, as Coca-Cola had promoted him three times since he was hired in 1999, he worked mostly off-site except for monthly meetings with manager Cabral, and while he raised his discrimination concerns with Cabral, he denied making any threatening gestures or statements.

The EEOC rules and guidance also require an employer to prove based on objective evidence that a worker poses a “direct threat” before an employer may require a medical exam or make inquiries on that basis, Owusu said.

Instead, Coca-Cola relied on the “totally subjective medical opinion” of its outside psychologist consultant to require Owusu to undergo the psychiatric exam and take the personality test as a condition of resuming his job, Owusu said.

“The important question of agency deference should be settled by the Supreme Court and not the Eleventh Circuit, to avoid continuing inconsistent court opinions from lower courts going in different directions on this same issue,” Owusu said.

Coca-Cola waived its right to file a brief opposing Supreme Court review.

 

To contact the reporter on this story: Kevin P. McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com