Pre-employment (and post-employment) drug screenings are allowed for
some types of jobs, but I don’t know if they are generally disallowed
for other types of jobs and, if so, whether there is any issue here
about requiring a drug screening test before hire (unrelated to the
issues raised by a false positive test result). Also, there have been
various challenges to drug testing programs and some of those cases
might provide additional arguments. And if the employer is regulated by
the DOT, DOT regulations re drug test programs may be relevant (see 49
CFR §§ 40.1-40.413).
Attached is a recent case (Connolly v. First Personal Bank, 2008 WL
4951221), in which a federal district court denied a motion to dismiss a
claim under 42 USC § 12112(d)(3)(C) based on use of a pre-employment
drug test that screened out a person using a prescribed drug. The case
is rather odd, as Dan Bruner has pointed out to me, in that there
doesn’t appear to be any “disability” at issue (actual or perceived);
perhaps the court ignored that issue because it apparently was not
raised in the motion to dismiss. (Also, the plaintiff in the case
seemed to mix concepts applicable to those already hired: arguing that
the employer had to show the exclusionary criteria were job-related and
consistent with business necessity. As the court noted, that comes from
42 USC § 12112(d)(4), which was not applicable to the pre-employment
Only the Westlaw citation is currently available.
United States District Court, N.D. Illinois, Eastern Division.
R. Sue CONNOLLY, Plaintiff,
FIRST PERSONAL BANK, Defendant.
No. 07 C 5272.
Nov. 18, 2008.
Kerry Evan Saltzman, Williams, Bax & Ellis, P.C., Chicago, IL, for
James J. Convery, Laner, Muchin, Dombrow, Becker Levin & Tominberg,
Ltd., Chicago, IL, for Defendant.
MEMORANDUM OPINION AND ORDER
JAMES B. ZAGEL, District Judge.
*1 Plaintiff, R. Sue Connolly (“Connolly”), filed a three-count
complaint against Defendant First Personal Bank (“FPB”), alleging
violations of the Americans with Disabilities Act of 1990, as amended 42
U.S.C. § § 12101-12117 (“ADA”). In 2007, Connolly interviewed with Bank
President Randall Schwartz for the position of Senior Vice President of
Commercial Lending at FPB. On March 26, 2007, Connolly received a letter
from Schwartz formally offering her the position of Senior Vice
President and Senior Lending Officer at FPB. The offer letter stated
that Connolly's employment was contingent upon her satisfactory
completion of a pre-employment drug test. Prior to the drug test,
Connolly informed Schwartz that she had recently received a cervical
epidural shot procedure that might result in additional medication
showing up on the test. The test indeed showed a positive result for
Phenobarbital. Upon learning of the test results, Schwartz called
Connolly and rescinded FPB's offer of employment.
At the time of the drug test, Connolly did in fact have Phenobarbital
in her system because it was included in medication that was lawfully
prescribed to her by her physician. Connolly contacted Schwartz to
remind him that she was on a variety of medications for various medical
conditions and offered to have her physicians verify the medications
they had prescribed, including Phenobarbital. Schwartz refused to allow
Connolly to explain the presence of Phenobarbital in her system and told
Connolly that FPB's decision to rescind her offer of employment was
final. Connolly provided Schwartz with a letter from her doctor
explaining the nature of the lawfully prescribed medication she was
taking at the time of her drug test, and that letter was returned by FPB
Connolly filed a complaint with this Court on September 18, 2007, and
two amended complaints thereafter. Connolly's second amended complaint
alleges three counts under the ADA. FPB has moved to dismiss Count III,
which alleges that FPB followed a preemployment drug testing policy and
a drug screening process which prohibited the use of all legally
prescribed medications, in violation of 42 U.S.C. § 12112(d)(3)(C). For
the following reasons, FPB's motion to dismiss Count III is denied.
A. Standard of Review: Motion to Dismiss
A Rule 12(b)(6) motion tests the sufficiency of a complaint, not the
merits of a case. Autry v. Northwest Premium Serv., Inc., 144 F.3d 1037,
1039 (7th Cir.1998). FPB's motion to dismiss should be granted only if
Connolly cannot prove any set of facts in support of her claim that
would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78
S.Ct. 99, 2 L.Ed.2d 80 (1957). I must accept all well-pleaded factual
allegation in the complaint as true, drawing all reasonable inferences
from those facts in Connolly's favor. Cleveland v. Rotman, 297 F.3d 569,
571 (7th Cir.2002). That said, Connolly's “obligation to provide the
grounds of [her] entitlement for relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of
action will not do. Factual allegations must be enough to raise a right
to relief above the speculative level.” Bell Atlantic v. Twombly, 550
U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). Her complaint
must allege “enough facts to state a claim to relief that is plausible
on its face.” Id. at 1974.
*2 FPB makes two arguments in support of its motion to dismiss.
First, FPB argues that the drug test administered to Connolly did not
violate 42 U.S.C. § 12112 because the drug test was not a medical exam.
Second, FPB contends that Count III fails to state a claim under the ADA
because it does not allege that Connolly's job offer was withdrawn based
on a disability or a perceived disability.
The ADA generally prohibits discrimination against “a qualified
individual with a disability.”42 U.S.C. § 12112(a). With respect to
medical examinations and inquiries, § 12112(d) provides separate rules
depending on whether the individual is a job applicant, an applicant
with an offer who has not yet begun working, or an employee.
Subsection (d) (1) first states that, generally “[t]he prohibition
against discrimination as referred to in subsection (a) of this section
shall include medical examinations and inquiries.”With respect to job
applicants who have not received an offer, subsection (d)(2) provides
that an employer may only make preemployment inquiries of an applicant's
ability “to perform job-related functions” but not into whether the
applicant is disabled. § 12112(d)(2)(A) and (B). Under subsection
(d)(3), which applies to an applicant who has received an offer of
employment but who has not yet started work (applicable here), the
employer may require a medical examination and make an offer of
employment conditional on the results of such examination so long as (1)
all employees are subject to such inquiry; (2) information obtained is
maintained on separate forms and in separate files and treated as
confidential; (3) the results of the examination are “only used in
accordance with this subchapter.”§ 12112(d)(3); see also29 C.F.R. §
1630.14(b). Regarding the third requirement that the results are “only
used in accordance with this subchapter,” this means “as long as the
employer does not discriminate on the basis of the applicant's
disability.” O'Neal v. City of New Albany, 293 F.3d 998, 1010 n. 2 (7th
FN1. Finally, although not applicable here, under subsection (d) (4),
which applies to employees, the employer may not inquire into whether an
employee suffers from a disability unless any such examination is
“job-related and consistent with business necessity.”§ 12112(d)(4)(A);
29 C.F.R. § 1630.14(c).
In support of its first argument, FPB relies on 42 U.S.C. §
12114(d)(1), which provides: “a test to determine the illegal use of
drugs shall not be considered a medical examination.”FPB argues that
because tests to determine the presence of illegal drugs do not
constitute medical examination under the ADA, Count III should be
dismissed because it is based on the premise that the drug test
administered to Connolly was a medical examination.
Connolly responds that the drug test she was administered was a test
for the use of legal drugs in addition to illegal ones and therefore not
the type of test exempt from the rules regarding medical examinations.
According to Connolly, because the decision to rescind her offer was
based on the result of the exam, FPB was required to show that its
exclusionary criteria were job-related and consistent with business
necessity. Connolly claims that FPB made its decision to rescind her
offer pursuant to its alleged drug policy that prohibited the use of all
legally prescribed medication without regard to whether such medication
was related to whether she could perform her job responsibilities. She
claims that the preemployment drug test, as administered to her, served
as a blanket exclusionary test which left no allowance for the legal use
of controlled substances. See Rowles v. Automated Production Systems,
Inc., 92 F.Supp.2d 424, 430 (M.D.Pa.2000) (holding that employer's drug
policy violated the ADA “to the extent that it prohibits the use of all
legally prescribed controlled substances without a determination that
such prohibition is job-related and consistent with business
*3 For purposes of the ADA, tests to determine illicit drug use are
clearly not medical examinations. However, a test for illicit drug use
may also, as in this case, return results for legal drug use that could
affect the functioning of the employee in the specific job setting. A
sensible reading of the statute instructs that an employer may only rely
on a test for illicit drug use to make employment decisions based on
that illicit use. A problem arises when, as here, licit drug use appears
on the applicant's drug test results and the employer takes some action
based on those results. Congress has a long history of enforcement
against illicit drug use in this country, but I can't conclude that
Congress intended to permit that enforcement mechanism to function in a
way that circumvents the purpose of the ADA to prohibit discrimination
against qualified individuals with disabilities. In these circumstances
there is a minimal cost to determine whether the presence of
Phenobarbital was legal. The exemption for drug testing was not meant to
provide a free peek into a prospective employee's medical history and
the right to make employment decisions based on the unguided
interpretation of that history alone.
At this stage in the case, all I have is Connolly's allegations that
her offer of employment was rescinded based on a pre-employment positive
drug test for Phenobarbital, a substance that was included in a
medication legally prescribed to Connolly by her doctor. Connolly
attempted to explain the presence of Phenobarbital in her system, but
she was refused any chance to do so.FN2A preemployment drug test may not
be administered under the guise of testing for illicit drug use when in
fact the results are used to make employment decisions based on both
legal and illegal drug use alike. It is not difficult to conclude that a
drug test revealing use of a substance whose use may be illegal would
justify a full scale medical examination or a lesser inquiry. Based on
the results of the drug test, FPB could have conducted a further medical
examination in order to make a traditional evidence based assessment on
how or if Connolly's prescription drug regime would affect her ability
to function effectively in her job. Evidence adduced later on may reveal
defects in Count III, but at this stage, Connolly has sufficiently
alleged that FPB's drug test was more than a mere test for illicit drug
use and that FPB used the drug test in order to prohibit the use of even
legally prescribed medication without regard to whether such medication
would impair Connolly's ability to effectively perform her job.
FN2. The facts and procedure here are different than those in Myers,
on which FPB relies, because in that case the court considered the text
of the defendant company's drug policy, which clearly excluded the use
or possession of legally prescribed substances. Meyer v. Qualex, Inc.,
388 F.Supp.2d 630, 636 (E.D.N.C.2005). The plaintiff in Myers was also
given the opportunity to explain that his positive drug test was caused
by legal medication. Id. In this case, not only were Connolly's attempts
to explain the results of her drug test dismissed and/or ignored, but
FPB's drug policy is not yet in evidence for me to consider.
With regard to FPB's second argument, that Count III fails to state a
claim because it does not contain allegations that FPB withdrew its
offer of employment based on Connolly's disability or perceived
disability, the weight of authority supports the rule that a job
applicant alleging an impermissible preemployment disability related
inquiry does not have to suffer from a disability or be perceived as
disabled in order to find protection under the statute. See e.g., Fredenburg
v. Contra Costa Dept. of Health Servs., 172 F.3d 1176, 1182 (9th
Cir.1999); Griffin v. Steeltek, 160 F.3d 591 (10th Cir.1998); Roe v.
Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1229 (10th
Cir.1997); Jackson v. Lake County, No. 01-6528, 2003 WL 22127743, at *9
(N.D.Ill. Sept.15, 2003); contra Adler v. I & M Rail Link, L.L.C., 13
F.Supp.2d 912, 932-37 (N.D.Ia.1998); Varnagis v. City of Chicago, No.
96-6304, 1997 WL 361150, at *6-7 (N.D.Ill. June 20, 1997); Krocka v.
Bransfield, 969 F.Supp. 1073, 1094 (N.D.Ill.1997). In Jackson, the court
relied on the language of the statute, noting that subsections (d)(2-4)
all refer to “employees” and “job applicants,” not “qualified
individuals with a disability,” which is the more restrictive language
of section 12112(a), incorporated by reference only in section
12112(d)(1). 2003 WL 22127743, at *9. Limiting these sections to
employees or applicants with disabilities would “obliterate much of [the
statute's] usefulness” because “[i]t makes little sense to require an
employee to demonstrate that he has a disability to prevent his employer
from inquiring whether or not he has a disability.”See id., at *8
(citing Cossette v. Minnesota Power & Light, 188 F.3d 964, 969 (8th
*4 The Seventh Circuit has noted in dicta that § 12112(d)“does not
require that an individual be disabled to state a claim.” Murdock v.
Washington, 193 F.3d 510, 512 (7th Cir.1999). But three years later, the
court made no reference to Murdock and said that it had not yet decided
the issue. See O'Neal, 293 F.3d at 1007. Other circuits, too, have
declined to reach the question of whether nondisabled individuals have a
cause of action for violations of § 12112(d).See, e.g., Tice v. Centre
Area Transp. Authority, 247 F.3d 506, 516-17 (3d Cir.2001); Watson v.
City of Miami Beach, 177 F.3d 932, 935 (11th Cir.1999); Armstrong v.
Turner Indus., 141 F.3d 554, 559 (5th Cir.1998).
I find the reasoning of Jackson and the cases cited therein
persuasive. Accordingly, Connolly may maintain a claim under §
12112(d)(3) for FPB's alleged violations of the ADA's provisions
limiting preemployment medical testing without alleging that FPB
withdrew its offer of employment based on her disability or perceived
For the foregoing reasons, FPB's motion to dismiss Count III is
Connolly v. First Personal Bank
Slip Copy, 2008 WL 4951221 (N.D.Ill.), 21 A.D. Cases 385