Reference no: EM131350472

Assignment

Part 1

Case Study: Harrison v. Benchmark Electronics Huntsville 593 F.3d 1206 (11th cir. 2010)

Opinion by CircuitJudgeSilver:

John Harrison sued Benchmark Electronics Huntsville, Inc. ("BEHI"), alleging . . . that BEHI engaged in an improper medical inquiry, in violation of the Americans with Disabilities Act of 1990 ("ADA"). The district court granted summary judgment in favor BEHI. . . . We reverse.

In November 2005, Aerotek, a company that places temporary workers at BEHI, assigned Harrison to work at BEHI. Harrison worked as a "debug tech," and his responsibilities included identifying problems with, repairing, and testing electronic boards. Although he suffers from epilepsy and takes barbiturates to control his condition, the Equal Employment Opportunity Commission ("EEOC") determined that he did not have a disability as defined under the ADA.

At the time Harrison commenced his temporary position at BEHI, the company had a practice of screening temporary employees for potential permanent employment. If a supervisor believed that a temporary employee would meet BEHI's needs, he would invite that employee to submit an application for employment and complete the necessary drug testing and background check. * * * On May 19, 2006, Harrison submitted an application for permanent employment, at the request of his supervisor, Don Anthony. Along with his application, he consented to a drug test. * * * In July 2006, Lena Williams, employed in BEHI's human resources department, was notified that Harrison's test had come back positive and was awaiting review by a Medical Review Officer ("MRO"). She called Anthony and asked him to "send [Harrison] her way." She stated that she did not tell Anthony about the positive drug screen at any time, because she had a duty to keep such information confidential. * * *

Regardless of how he found out about the drug test results, Anthony informed Harrison that he had tested positive for barbiturates. Harrison responded by claiming to have a prescription, which Anthony instructed him to retrieve. Anthony then called the MRO and passed the phone to Harrison, who answered a series of questions about the medication. The MRO asked him how long he had been disabled, what medication he took, and how long he had taken it. He replied that he had epilepsy since he was two years old, he took barbiturates to control it, and he stated the amount of his dosage. Anthony did not ask any questions, but he remained in the room during this colloquy and heard Harrison's responses to the MRO's questions.

On July 19, 2006, the MRO reported to Williams that Harrison's drug test had been cleared. By this time, Williams had also received clearance to hire Harrison, information she passed on to Anthony. However, Anthony told human resources not to prepare an offer letter for Harrison. Anthony then asked Aerotek not to return Harrison to BEHI. On August 18, 2006, Aerotek informed Harrison that he would not be returning to BEHI, because he had a performance and attitude problem, and because he had been accused of threatening Anthony. He was fired from Aerotek that same day.

Through the course of the litigation, Anthony has asserted three reasons to support his decision not to hire Harrison: (1) he was too busy preparing for a company-wide audit to extend the offer; (2) Harrison had made threats against him; and (3) several employees had expressed concern to him about Harrison'scompetence. Anthony maintains that, in light of these concerns, he simply needed more time to evaluate Harrison. * * *

Harrison allege[s] various violations of the ADA: namely, that (1) BEHI engaged in an improper medical inquiry, (2) he was not hired due to a perceived disability, and (3) he was terminated due to a perceived disability. * * * The district court granted BEHI's motion, as to both the preemployment medical inquiry and perceived disability claims. * * * Because Harrison "tested positive for barbiturates," the court held that BEHI was then authorized to ask Harrison whether he "had a legitimate use for such medication."

Before addressing the merits of Harrison's appeal, we must first examine whether he, a nondisabled individual, can state a private cause of action for a prohibited medical inquiry in violation of [the ADA]. * * * Harrison urges us to join our sister circuits who are unanimous in recognizing a private cause of action irrespective of the plaintiff 's disability status... . In the pre-offer stage, which is at issue in this case, "a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability." * * * [T]he statutory language at issue in this case . . . does not predicate suit under the statute on an applicant's disability status. In contrast to the ADA's general prohibition of disability discrimination . . . which refers only to "qualified individuals with disabilities," [the preemployment medical examinations and inquiries section of the ADA] refers broadly to "applicants." An "applicant" is "[a] person who submits a formal application to do something or for a position, especially as part of recruitment or selection process; a candidate."

* * * [The language in the ADA prohibiting preemployment medical inquiries] does not limit coverage to applicants who are also "qualified individuals with disabilities," and we do not infer such a restriction. * * * Congress sought to prevent employers from using preemployment medical inquiries "to exclude applicants with disabilities-particularly those with so-called hidden disabilities such as epilepsy, diabetes, emotional illness, heart disease, and cancer-before their ability to perform the job was even evaluated." The legislative history . . . indicates that "Congress wished to curtail all questioning that would serve to identify and exclude persons with disabilities from consideration for employment. . . ." Allowing nondisabled applicants to sue will enhance and enforce Congress's prohibition.

Moreover, a contrary reading would vitiate [the ADA's] effectiveness: "It makes little sense to require an [applicant] to demonstrate that he has a disability to prevent his [potential] employer from inquiring as to whether or not he has [one]." * * * Thus, we now explicitly recognize that a plaintiff has a private right of action under [the section of the ADA prohibiting preemploymentmedical inquiries], irrespective of his disability status.

* * * Consistent with Congress's intent, the regulations adopted under the ADA by the EEOC provide that an employer may make "preemployment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform the job related functions." The regulations clarify that while it is appropriate for an employer to inquire into an applicant's ability to perform job-related functions, it is illegal for him to make targeted disability-related inquiries. The EEOC has defined "disability-related" questions as those "likely to elicit information about a disability." On the other hand, "if there are many possible answers to a question and only some of those answers would contain disability-related information, the question is not ‘disability-related.' "In addition to allowing inquiries directed at an applicant's ability to perform job-related functions, the ADA recognizes an exemption for drug tests. (". . . a test to determine the illegal use of drugs shall not be considered a medical examination.") Employers may also ask follow-up questions in response to a positive drug test . . . . ("[I]f an applicant tests positive for illegal drug use . . . the employer may validate the test results by asking about lawful drug use or possible explanations for the positive result other than the illegal use of drugs. [For example, the employer may lawfully ask questions such as, ‘What medications have you taken that might have resulted in this positive test result? Are you taking this medication under a lawful prescription?' "). However, the regulations, coupled with the EEOC's guidelines, make clear that disability-related questions are still prohibited. * * *

While the district court correctly concluded that employers may conduct follow-up questioning in response to a positive drug test, it failed to acknowledge any limits on this type of questioning. * * * Harrison testified that Anthony told him his drug test was positive, that he disclosed his prescription, that he was then taken to Anthony's office where he answered questions about his medication, and that Anthony remained in the room during this interview. Anthony denied ever knowing that Harrison suffered from epilepsy, and he acknowledged that it would be improper for him to be present during the MRO interview. Although BEHI was permitted to ask follow-up questions to ensure that Harrison's positive drug test was due to a lawful prescription, a jury may find that these questions exceeded the scope of the likely-to-elicit standard, and that Anthony's presence in the room violated the ADA, especially considering the conflict between Harrison's testimony-that to answer the MRO's questions he was forced to disclose the fact and extent of his epilepsy-and Anthony's-that he never knew Harrison suffered from the condition. A reasonable jury could infer that Anthony's presence in the room was an intentional attempt likely to elicit information about a disability in violation of the ADA's prohibition against preemployment medical inquiries. * * *Finally, BEHI obliquely argues that even assuming an improper medical inquiry, Harrison cannot present evidence of damages sufficient to overcome summary judgment. * * * [O]ur sister circuits require that a nondisabled plaintiff at least show some damages . . . caused by a [an impermissible medical inquiry]. We agree. * * * Harrison has presented sufficient evidence for a reasonable jury to find that he suffered damages- namely, that he was not hired as a permanent employee of BEHI because of his responses to allegedly unlawful questions. * * * [A] reasonable jury could infer that Anthony did base his decision not to hire Harrison on information gleaned from an improper medical inquiry. "[I]t may be that, at trial [BEHI] will be able convincingly to show that its proffered reason[s] [were] bona fide. In that case it will prevail." We merely hold that summary judgment cannot be supported at this time; we must, therefore, reverse and remand.

Case Questions

1. What were the legal issues in this case? What did the court decide? Why?

2. Would the purpose of prohibiting preemploymentmedical inquiries be defeated if the court had ruled that this requirement applied only to disabled job candidates?

3. What medical inquiries were made in this case? Why might they have violated the ADA?

4. What should an employer do to verify whether a positive drug test result was caused by a lawful prescription drug?

Part 2

Case Study: Ketchikan Drywall Services v. Immigration & Customs Enforcement 2013 u.s. app. LeXis 16230 (9th cir.)

Opinion By Circuit JudgeTashima:

[The Immigration Reform and Control Act (IRCA)] imposes an obligation on employers to verify that their employees are legally authorized to work in the United States. Regulations designate the Employment Eligibility Verification Form ("I-9 Form") for this purpose and employers must retain these forms and provide them for inspection upon three days' notice. This case arises out of the results of one such inspection in which Immigration and Customs Enforcement ("ICE") discovered violations of the verification requirements of [IRCA].

Ketchikan Drywall Services, Inc. ("KDS") petitions for review from the summary decision of an Administrative Law Judge ("ALJ") in favor of ICE on 225 out of 271 alleged violations . . . and the resulting civil penalty of $173,250.00. * * * We . . . deny the petition. KDS is a drywall installation company incorporated in Washington State. It employs four full-time employees and approximately twenty part-time employees. It also hires additional employees as needed on a projectby-project basis. KDS does not hire workers "in the field," but requires them to go to its main office first to fill out I-9 Forms.

Over the years, more than a dozen different employees have been responsible for collecting I-9 Forms from new hires, but until 2006, KDS did not employ any staff with training in I-9 compliance. In 2000, KDS received a Warning Notice from the Immigration and Naturalization Service [now ICE] following an audit of its I-9 Forms. In 2006, KDS finally hired a new Controller with I-9 training who initiated efforts to improve compliance. In March 2008, ICE served a Notice of Inspection and administrative subpoena on KDS, requesting "[o]riginal I-9 Forms . . . and any copies of attached documents presented at the time of I-9 completion for employees working from January 1, 2005 to March 25, 2008." KDS produced some I-9 Forms and other employee verification documents on April 2, 2008. On April 4, 2009, ICE served a Notice of Intent to Fine ("NIF"), . . . [an amended notice was issued in October 2009].

The amended NIF contained four counts. Count I covered 43 employees for whom KDS had failed to provide any I-9 Form at all. . . . Count II covered 65 employees for whom Section 1 ("Employee Information and Attestation") of the I-9 Forms was incomplete. . . . Count III covered 110 employees for whom Section 2 ("Employer or Authorized Representative Review and Verification") of the I-9 Forms was incomplete. . . . Count IV covered 53 employees for whom there were omissions in both Section 1 and Section 2. ICE ordered KDS to pay a civil penalty of $286,624.25.

* * *The ALJ adopted ICE's proposed base penalty, but adjusted it downwards [to the aforementioned $173, 250] to reflect the fact that fewer violations had been proven than alleged. * * *KDS contends that many of the violations that the ALJ found were not violations at all, on the ground that it had copied and retained documentation for these employees and that any omissions from the I-9 Forms themselves were either minor or could be filled in by reference to the copied documents. KDS also argues that the ALJ erred in refusing to consider those documents produced for the first time with its summary decision materials, and that those documents cure the deficiencies in the I-9 Forms to which they relate. Finally, KDS argues that the penalty was improperly calculated and should have been reduced to reflect both its good faith efforts to comply with its statutory obligations and the non-serious nature of any violations. * * *KDS argues that [IRCA] unambiguously allows an employer simply to copy and retain its employees' verification documents in order to comply with the verification and documentation requirements . . . * * * Under a plain reading of its text, nothing in [IRCA] relieves employers of any of the[ir] statutory verification and documentation obligations. . . . * * * That the statute permits the copying and retention of documents for the purpose of complying with the statute does not mean that employers need do nothing further in order to comply. * * * Regulations confirm this understanding that compliance requires that the relevant information from the documents be transcribed onto the I-9 Form, regardless of whether copies of the documents are retained. * * *KDS argues that it is senseless to require employer and employees to waste the time necessary to transcribe information onto I-9 Forms when that information is already available on an attached copy of the relevant document. But requiring that the parties take the time to copy information onto the I-9 Form helps to ensure that they actually review the verification documents closely enough to ascertain that they are facially valid and authorize the individual to work in the United States. The I-9 Form also provides concrete evidence that such review took place. Further, aggregation of all of the relevant information onto one form allows for easier review of that information by ICE. It is neither arbitrary nor capricious to require that employers actually complete their I-9 Forms.

KDS argues in the alternative that even if it has not complied with all of [IRCA's requirements] . . ., its noncompliance should nevertheless be treated as compliance because any deficiencies were merely "technical or procedural," made in spite of a "good faith attempt to comply." * * * In 1997, the INS published extensive interim guidelines interpreting what constituted "technical or procedural" violations as opposed to "substantive" violations. * * *

KDS argues first that it is not responsible for errors or omissions made by employees in Section 1 of its I-9 Forms, but [IRCA] clearly makes employers responsible for documenting employee work authorization. Where KDS chose to hire employees who had failed to fill out Section 1 completely, it did so at its own peril. KDS also argues that it suffices for an employee to attest that he or she is authorized to work generally, and that there is accordingly no requirement for that employee to check a specific box in Section 1 of the I-9 Form. The language of the statute compels the contrary conclusion, however: employees must attest to the specific category of eligibility into which they fit. . . . [A]n employee's failure to check a box in Section 1 is indeed a "substantive" verification failure.

Next, KDS contends that its retention and production of copies of certain of its employees' documents excuse deficiencies on the I-9 Forms where the copied documents provide the necessary information. It is true that . . . some kinds of violations that would otherwise be "substantive" are rendered "technical or procedural" where the relevant information is available "on a legible copy of a document retained with the Form I-9 and presented at the I-9 inspection." KDS was found liable for deficiencies in Section 1 related to its employees' failure to attest to a specific category of eligibility by checking the appropriate box, however, and such violations are classified as "substantive," notwithstanding the availability of copies of the relevant documents. * * * KDS argues that it should not be penalized for using a copy of Section 1 of an employee's previous I-9 Form to create a new form when it rehired that employee. When an employer rehires an employee, it has the option of either using Section 3 of that employee's previous I-9 Form, or of creating a new form. There is no option to proceed by cobbling together elements of the two. This is because the requirement that employees sign Section 1 does not exist for its own sake, but rather to provide a concrete manifestation of the fact that, at the relevant time, the employee performed the act of attestation. Where a new I-9 is generated using a photocopied signature, the employee has not attested to anything with respect to that new form. KDS' arguments to the contrary miss this critical point. * * *

KDS contends that the ALJ should have considered certain copies of employees' verification documents that it produced for the first time together with its summary decision materials in connection with the administrative hearing. It further contends that these documents cure some of the deficiencies in the I-9 Forms to which they relate (but to which they were not attached and with which they were not produced). It explains that its failure to produce these documents earlier was the result of its having misunderstood the ICE subpoena, which asked for documents that were "attached" to I-9 Forms. Because it kept some of these documents in folders separate from its employees' I-9 Forms, KDS claims that it did not realize until later that these documents were important.

We first note the implausibility of this explanation: had KDS believed that its having copied these documents either satisfied the verification requirements of [IRCA] or else cured deficient I-9 Forms, then it would have surely also known that it must produce them to show that it was in compliance once ICE began its investigation. Instead, it produced facially deficient I-9 Forms without any attached photocopied documentation at all, only later scrambling to produce the documents that it claimed excused the facially deficient I-9 Forms. More importantly, while the [1997 INS guidelines] . . . excuse certain deficiencies that would otherwise be substantive where the missing information has been copied and retained, [they] do[] so only where that information may be found "on a legible copy of a document retained with the Form I-9 and presented at the I-9 inspection." Therefore, the documents that KDS had not presented at the I-9 inspection could not excuse any substantive deficiencies in the I-9 Forms to which they related. The ALJ properly refused to admit these untimely-produced documents. * * *

KDS also contends that the ALJ erred . . . because he failed to make individualized penalty determinations with regards to each violation. [IRCA] requires that "due consideration . . . be given to the size of the business . . ., the good faith of the employer, the seriousness of the violation, whether or not the individual was an unauthorized alien, and the history of previous violations." While this section requires the ALJ impose a penalty for each violation, it does not require the ALJ explicitly to make individualized findings with regards to each violation committed by the same business entity. Indeed, the size of the business and any history of previous violations are necessarily considered generally. The good faith of the employer also calls for a general analysis, and where, as here, many of the violations were similar, their seriousness lends itself to general consideration as well. The primary question that calls for individual treatment is whether or not an individual was an unauthorized alien. Here, the ALJ rejected ICE's contention that "some" of KDS' employees were unauthorized, and so a stiffer penalty should be imposed, on the ground that ICE failed to carry its burden to identify individually the unauthorized employees. Thus, with respect to the one factor requiring an individualized finding, the ALJ ruled in favor of KDS. Accordingly, we reject KDS' argument that the ALJ erred by failing to make individualized findings for each factor.

Next, KDS objects to the ALJ's finding that the penalty should not be mitigated for "good faith." The ALJ found that KDS' choice to wait until 2006 to attempt to improve its I-9 compliance did not evidence a "good faith effort to ascertain what the law requires or to conform its conduct to it," especially since KDS had received a warning notice from the INS as early as 2000. The ALJ also noted that the statute with which KDS had failed to comply was over twenty years old. He described KDS' compliance record as "dismal," but did not enhance the penalty for "bad faith." The ALJ clearly gave "due consideration" to KDS' position and his reasoned refusal to mitigate the penalty for "good faith" was neither arbitrary nor capricious. * * *

For the foregoing reasons, KDS' petition for review is DENIED.

Case Questions

1. What were the legal issues in this case? What did the appeals court decide?

2. What arguments does this employer make for why its actions did not violate the IRCA or were, at most, minor, technical violations? Why does the court reject these arguments?

3. What factors are considered in determining the penalties for IRCA violations? Why does the court reject this employer's arguments for a lesser penalty? Should penalties only be assessed when it is shown that a violation of IRCA requirements resulted in the hiring of a worker not authorized to work in the United States? Why or why not?

4. What are some practical implications of this case for employers?

5. Do you agree with the court's decision? Why or why not?