No. 08-16656 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ____________________________________________ JOHN HARRISON, Plaintiff-Appellant, v. BENCHMARK ELECTRONICS, INC., Defendant-Appellee ____________________________________________ On Appeal From the United States District Court for the Northern District of Alabama Hon. Inge P. Johnson, District Judge ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLANT AND REVERSAL ____________________________________________ JAMES L. LEE EQUAL EMPLOYMENT Deputy General Counsel OPPORTUNITY COMMISSION Office of General Counsel VINCENT BLACKWOOD 131 M St. NE, Rm. 5NW10P Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 JAMES M. TUCKER James.Tucker@EEOC.gov Attorney CERTIFICATE OF INTERESTED PERSONS Amicus Curiae the Equal Employment Opportunity Commission submits this list, pursuant to Eleventh Circuit Rules 26.1-1 and 29-2, of trial judges, attorneys, persons, associations of persons, firms, partnerships, and/or corporations known to have an interest in the outcome of this appeal: - Allen L. Anderson, Counsel for Defendant-Appellee - Benchmark Electronics, Inc., parent company of Defendant-Appellee - Benchmark Electronics Huntsville, Inc., Defendant-Appellee - Vincent Blackwood, Acting Associate General Counsel, EEOC - Michael L. Fees, Counsel for Defendant-Appellee - Fees & Burgess, P.C., Counsel for Defendant-Appellee - John Harrison, Plaintiff-Appellant - Hon. Inge P. Johnson, District Judge - Stacy L. Moon, Counsel for Defendant-Appellee - James L. Lee, Deputy General Counsel, EEOC - Henry F. Sherrod, III, Counsel for Plaintiff-Appellant - James M. Tucker, Attorney, EEOC Pursuant to Federal Rules of Appellate Procedure Rule 26.1, Amicus Curiae the Equal Employment Opportunity Commission, as a government entity, is not required to file a corporate disclosure statement. ________________________ JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . . . . . . . . . . . . . C-1 TABLE OF CITATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . 2 District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . 4 SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. THE AMERICANS WITH DISABILITIES ACT PROVIDES AGGRIEVED INDIVIDUALS WITH A PRIVATE CAUSE OF ACTION FOR VIOLATIONS OF THE STATUTE'S PROHIBITION ON PREEMPLOYMENT MEDICAL EXAMINATIONS AND INQUIRIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 II. THE PLAINTIFF PLED HIS ADA MEDICAL EXAMINATIONS AND INQUIRIES CLAIM WITH SUFFICIENT CLARITY TO PLACE THE DEFENDANT ON NOTICE OF THE CLAIM AND THE GROUNDS UPON WHICH IT RESTS. . . . . . . . . . . . . . . . . . . . . . . . 13 III. THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT THE DEFENDANT VIOLATED THE ADA'S PROHIBITION ON PREEMPLOYMENT MEDICAL EXAMINATIONS AND INQUIRIES. . . . . . . . . . . . . . . . . . . . . . . . . . . 17 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 CERTIFICATE OF COMPLIANCE ADDENDUM 42 U.S.C. § 12112(a), (d). . . . . . . . . . . . . . . . . . . . . A-1 42 U.S.C. § 12114(d). . . . . . . . . . . . . . . . . . . . . . . . A-2 42 U.S.C. § 12117(a). . . . . . . . . . . . . . . . . . . . . . . . A-3 29 C.F.R. § 1630.16(c)(3). . . . . . . . . . . . . . . . . . . . . A-4 29 C.F.R. Pt. 1630 Appx. § 1630.16(c). . . . . . . . . . . . . . . . A-5 House Committee on Education and Labor Report on the Americans with Disabilities Act, H.R. Rep. No. 101-485 pt. 2 (1990) (excerpts). . . . . . . . . . . . . . . . . . . . . . . A-6 House Committee on the Judiciary Report on the Americans with Disabilities Act, H.R. Rep. No. 101-485 pt. 3 (1990) (excerpts). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-7 EEOC Enforcement Guidance: Preemployment Disability- Related Questions and Medical Inquiries, No. 915-002 (Oct. 10, 1995) (excerpts). . . . . . . . . . . . . . . . . . . . . A-8 EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act (ADA), No. 915.002 (July 27, 2000) (excerpts). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-9 CERTIFICATE OF SERVICE TABLE OF CITATIONS Cases page(s) *Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 127 S. Ct. 1955 (2007). . . . . . . . . . . . . .13, 14, 15 Bennett v. Dominguez, No. 06-10867, 196 Fed. Appx. 785 (11th Cir. 2006). . . . . . . . . . . 9 *Conroy v. N.Y. State Dep't of Corr. Servs., 333 F.3d 88 (2d Cir. 2003). . . . . . . . . . . . . . . . . . . . . 12 *Cossette v. Minn. Power & Light, 188 F.3d 964 (8th Cir. 1999). . . . . . . . . . . . . . . . . . 9, 12 *Davis v. Coca-Cola Bottling Co., 516 F.3d 955 (11th Cir. 2008). . . . . . . . . . . . . . . . . . . . . 14 *Fredenburg v. Contra Costa County Dep't of Health Servs., 172 F.3d 1176 (9th Cir. 1999). . . . . . . . . . . . . . . . . . 9, 12 *Griffin v. Steeltek, Inc., 160 F.3d 591, 593-95 (10th Cir. 1998). . . . . . . . . . . . . . . 9, 12 Grimsley v. Marshalls of MA, Inc., No. 07-15102, 2008 WL 2435581 (11th Cir. 2008). . . . . . . . . . . . 16 Harrison v. Benchmark Elec., Inc., No. 07-815 (N.D. Ala. Oct. 16, 2008). . . . . . . . . . . . . . . . 4, 5 Roe v. Cheyenne Mountain Conference Resort, 124 F.3d 1221 (10th Cir. 1997). . . . . . . . . . . . . . . . . . . . 13 Statutes 42 U.S.C. § 12101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12 42 U.S.C. § 12112(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 42 U.S.C. § 12112(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 *42 U.S.C. § 12112(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11 *42 U.S.C. § 12114(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 10 42 U.S.C. § 12117(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Rules and Regulations Fed. R. Civ. P. 8(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 13 29 C.F.R. § 1630.16(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . 11, 22 29 C.F.R. Pt. 1630 Appx. § 1630.16(c). . . . . . . . . . . . . . . . . . 11, 20, 22 Other Authority *House Education and Labor Committee Report on the Americans with Disabilities Act, H.R. Rep. No. 101-485 pt. 2 (1990), as reprinted in 1990 U.S.C.C.A.N. 303. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 19 House Judiciary Committee Report on the Americans with Disabilities Act, H.R. Rep. No. 101-485 pt. 3 (1990), as reprinted in 1990 U.S.C.C.A.N. 445. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 *EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Inquiries, No. 915-002 (Oct. 10, 1995). . . . . . 10, 18, 19 EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act (ADA), No. 915.002 (July 27, 2000). . . . . . . . . . . . . . . . . . . . . . . 12 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the interpretation, administration, and enforcement of Title I of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. The instant appeal presents the question of whether there exists a private cause of action for violations of the ADA's prohibition against preemployment medical examinations and inquiries. This case also presents a number of other questions ancillary to that primary issue, such as what a plaintiff must state in a complaint to properly plead such a claim, whether this cause of action is available to all applicants and not just those applicants who have a disability, and what evidence is required to show a violation of the statute's medical inquiries provision. These issues are all questions of first impression in this Court. Because of the importance of these issues to the effective enforcement of the ADA, the Commission respectfully offers its views to the Court. STATEMENT OF THE ISSUES<1> I. Whether a private cause of action exists for a violation of the ADA's prohibition on preemployment medical examinations and inquiries. II. Whether the plaintiff properly pled his claim that the defendant violated the ADA's prohibition on preemployment medical examinations and inquires. III. Whether there is sufficient evidence to support the plaintiff's claim that the defendant violated the ADA when it subjected him to disability-related preemployment medical inquires. STATEMENT OF THE CASE A. Statement of the Facts John Harrison was diagnosed with epilepsy when he was two years old. District Court Docket No. ("R.") 24, Ex. A at 18 (Harrison Dep. at 70). To control the effects of the disease, he is prescribed phenobarbital. R.24, Ex. A at 3-4 (Harrison Dep. at 12-13). From November 2005 through August 2006, Harrison worked for a temporary employment agency called Aerotek. R.24, Ex. A at 8 (Harrison Dep. at 32). Aerotek assigned Harrison to work at Benchmark Electronics Huntsville ("Benchmark") troubleshooting electronic circuit boards. R.24, Ex. A at 9 (Harrison Dep. at 34). In July 2006, Harrison's supervisor at Benchmark, Don Anthony, told him that a full-time position was available, that Harrison was the best qualified for the job, and that he should go and "take [his] drug test." R.24, Ex. A at 10 (Harrison Dep. at 38-39). Harrison completed an application for the position and, following Anthony's direction, went to the clinic Benchmark uses for its preemployment drug testing and took the test. R.24, Ex. A at 17 (Harrison Dep. at 68). About a week later, before an offer of employment had been extended to Harrison, Anthony pulled Harrison aside and told him that the drug test revealed barbiturates in his system and he had failed the test. Id. Harrison replied that he is taking a prescription medication, and Anthony told him to "go get his pill bottle." After Harrison did so, Anthony took Harrison to his office. R.24, Ex. A at 18 (Harrison Dep. at 69). When they arrived at Anthony's office, Anthony made a phone call to someone Harrison believed was in Benchmark's human resources office, but Harrison was not told who was on the other end of the call.<2> Id. Anthony then handed the phone to Harrison, and the person on the phone began to ask Harrison questions about his medication and his disability. R.24, Ex. A at 18 (Harrison Dep. at 69-70). Harrison was asked what he was taking, how long he had been taking it, what the medication was for, and how long he had had his disability. R.24, Ex. A at 18 (Harrison Dep. at 70). In answering the questions about his disability, Harrison stated that he had a tracheotomy at age two "that caused me to have epilepsy." Id. Although Anthony knew that he should not be present in the room during this discussion about Harrison's drug test, Anthony remained in the room for the duration of the call, including when Harrison disclosed that he has epilepsy. R.24, Ex. A at 18 (Harrison Dep. at 69); R.27 Ex. 1 at 51 (Anthony Dep. at 201-02). B. District Court Decision The district court granted summary judgment to Benchmark on all of Harrison's claims. R.32 at 21 (Harrison v. Benchmark Elec., Inc., No. 07- 815, at 21 (N.D. Ala. Oct. 16, 2008)). The court first ruled that Harrison's prohibited medical inquiry claim had not been properly pled in Harrison's complaint because this claim was first asserted by Harrison in response to Benchmark's motion for summary judgment. Id. at 12. The court then noted that the Eleventh Circuit has not addressed whether a private cause of action exists for a violation of the ADA's provisions regarding preemployment medical inquiries. Id. at 13. Nevertheless, the court concluded, even assuming the cause of action existed and had been properly pled, the evidence did not support Harrison's medical inquiries claim.<3> Id. at 14. The court rejected Harrison's argument that Benchmark's inquiries exceeded those permitted under the ADA, and noted that Benchmark's inquiries were validated by Harrison's having tested positive for barbiturates. Id. at 14-16. While the court acknowledged the evidence that Anthony overheard Harrison discuss his disability with the person on the phone, the court minimized the importance of this evidence, noting that there was no evidence Anthony had been able to hear the questions being asked of Harrison. Id. at 14-15. SUMMARY OF THE ARGUMENT The district court erred in concluding that Harrison did not plead, and could not prove, that Benchmark violated the ADA's prohibition on disability-related preemployment medical examinations and inquiries. The ADA provides a private cause of action for violations of its preemployment medical examinations and inquiries rules, treating them as violations of the statute just like any other prohibited form of discrimination. This is consistent with Congress's clearly expressed intent to keep employers from using disability information at the pre-offer stage to screen out disabled individuals, and every court of appeals to have addressed the question has agreed that this private cause of action exists. Every court of appeals to have addressed the question has also agreed that the ADA's protection against preemployment disability-related medical inquires extends to all applicants, regardless of whether or not they are disabled, as the statute protects "applicants," and not just disabled individuals, from prohibited examinations and inquiries. Harrison adequately pled his claim that Benchmark violated the ADA's ban on preemployment disability-related medical examinations and inquiries. His complaint provides a short and plain statement of both the claim itself and the grounds upon which he is entitled to relief. Finally, Harrison's summary judgment evidence was more than adequate to support a finding in his favor. Harrison's testimony that he was asked follow-up questions relating to his disability, and not just to whether he was using drugs illegally, was sufficient to support his claim that Benchmark exceeded the bounds of permissible preemployment medical questioning. For all theses reasons, we respectfully request that this Court reverse the district court's grant of summary judgment to Benchmark on Harrison's preemployment medical examinations and inquiries claim. ARGUMENT I. THE AMERICANS WITH DISABILITIES ACT PROVIDES AGGRIEVED INDIVIDUALS WITH A PRIVATE CAUSE OF ACTION FOR VIOLATIONS OF THE STATUTE'S PROHIBITION ON PREEMPLOYMENT MEDICAL EXAMINATIONS AND INQUIRIES. The ADA expressly provides that it is illegal for employers to make preemployment medical examinations and inquiries that relate to the disability status of an applicant.<4> 42 U.S.C. § 12112(d) (attached in Addendum ("Add.") at A-1). The legislative history behind this provision reflects Congress's awareness that employers routinely used preemployment medical inquiries to screen out individuals with disabilities: Historically, employment application forms and employment interviews requested information concerning an applicant's physical or mental condition. This information was often used 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. H.R. Rep. No. 101-485 pt. 2, at 72 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 354-55 (House Committee on Education and Labor report on the ADA) (Add. at A-6). Accordingly, Congress decided to outlaw these types of medical inquires, and to treat violations of these rules as actionable unlawful discrimination just as if an employee has been fired because of his or her disability. Consistent with these legislative findings, the statute specifically provides that a covered employer "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." 42 U.S.C. §§ 12112(d)(2) (Add. at A-1). The statute further provides that violations of the preemployment medical examination and inquiry rules amount to discrimination on the basis of disability, to be treated for purposes of the statute just like any other form of prohibited disability discrimination. 42 U.S.C. § 12112(a) (ADA's general prohibition against discrimination because of disability), (d)(1) ("The prohibition against discrimination as referred to in subsection (a) of this section shall include medical examinations and inquiries.") (Add. at A-1); see also H.R. Rep. No. 101-485 pt. 2, at 72 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 354-55 ("[T]he legislation specifies that the prohibition against discrimination in section 101(a) applies to medical examinations and inquiries.") (Add. at A-6). The statute further makes clear that the remedies available under Title VII-including injunctive relief-are available to a plaintiff "alleging discrimination on the basis of disability in violation of any provision in this chapter." 42 U.S.C. § 12117(a) (emphasis added) (Add. at A-3). Accordingly, it is clear that the ADA provides an independent cause of action, and a remedy, for violations of the prohibition on preemployment medical examinations and inquiries. Every court of appeals to address the question has recognized that this private cause of action exists. See Cossette v. Minn. Power & Light, 188 F.3d 964, 969-70 (8th Cir. 1999); Fredenburg v. Contra Costa County Dep't of Health Servs., 172 F.3d 1176, 1181-83 (9th Cir. 1999); Griffin v. Steeltek, Inc., 160 F.3d 591, 593-95 (10th Cir. 1998).<5> This is also the long-held position of the Commission. There is neither any authority nor any sound public policy reason for a contrary reading of the statute. Congress created an exception to the prohibition on preemployment medical examinations and inquiries by excluding testing for illegal drug use from the category of prohibited medical examinations. 42 U.S.C. § 12114(d)(1) (Add. at A-2). The illegal drug test exemption is narrow, limiting permitted testing to that needed to "determine the illegal use of drugs." The Commission has recognized that an employer may ask follow- up questions in order to determine whether a positive result from a drug test is indicative of illegal, rather than legal, drug use. EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Inquiries, No. 915-002, at 10 (Oct. 10, 1995) (Add. at A-8). If an applicant tests positive for illegal drugs, "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." Id. Acceptable questions include narrow inquires not likely to elicit disability-related information, such as "What medications have you taken that might have resulted in this positive test result?" or "Are you taking this medication under a lawful prescription?" Id. However, inquiries that go beyond this narrow scope, and that are likely to elicit disability-related information-such as the questions Benchmark's MRO allegedly asked Harrison-do not pertain to the narrow question of whether a positive test result was caused by legal or illegal drug use. Id. For example, employers may not ask for details about the legal use of a controlled substance, such as the underlying condition it is used to treat, because such questions are likely to elicit information about the applicant's disability. Since these types of questions do not pertain to discovering whether the applicant is using drugs illegally, they do not fall under the protection of the drug test exception and are instead prohibited preemployment medical inquiries. This approach to the treatment of such questions is supported by the Commission's regulations regarding testing for illegal drug use, which provide that "[a]ny information regarding the medical condition or history of any employee or applicant obtained from a test to determine the illegal use of drugs, except information regarding the illegal use of drugs" is to be treated as a confidential medical record, just like any other type of medical information in the employer's possession. See 29 C.F.R. § 1630.16(c)(3) (Add. at A-4); 29 C.F.R. Pt. 1630 Appx. § 1630.16(c) (Add. at A-5). The plain language of the statute also makes clear that, unlike some other provisions of the ADA, the statute's protection against preemployment medical inquiries and examinations extends to all applicants, regardless of disability status. Congress prohibited employers from conducting medical examinations or making 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." 42 U.S.C. § 12112(d)(2) (emphasis added) (Add. at A-1). Accordingly, any applicant-disabled or not-may sue for a violation of the ADA's provisions regarding preemployment medical inquiries. This is in direct contrast to the ADA's other antidiscrimination provisions, which expressly limit protection to qualified individuals with disabilities. See 42 U.S.C. § 12112(a) (Add. at A-1); see also EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act (ADA), No. 915.002 (July 27, 2000) ("This statutory language makes clear that the ADA's restrictions on inquiries and examinations apply to all employees, not just those with disabilities.") (Add. at A-9). As with the question of whether the ADA created a private cause of action for a violation of the ADA's provisions relating to medical examinations and inquiries, every court of appeals to have addressed this question has agreed that the ADA protects all applicants from such examination and inquiry-not merely those who are qualified individuals with disabilities. See Cossette, 188 F.3d at 969-70; Fredenburg, 172 F.3d at 1182; Griffin, 160 F.3d at 595; see also Conroy v. N.Y. State Dep't of Corr. Servs., 333 F.3d 88, 94-95 (2d Cir. 2003) (in the context of medical examinations and inquiries of employees, nondisabled employees may challenge employer inquiries as unlawful). As the Tenth Circuit recognized in the context of medical examinations of employees, to find otherwise would defeat the congressional purpose behind prohibiting disability-related inquiries, as "'[i]t makes little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability.'" Roe v. Cheyenne Mountain Conference Resort, 124 F.3d 1221, 1229 (10th Cir. 1997). The inescapable logic of this conclusion applies with equal force in the context of preemployment medical examinations and inquiries of applicants. II. THE PLAINTIFF PLED HIS ADA MEDICAL EXAMINATIONS AND INQUIRIES CLAIM WITH SUFFICIENT CLARITY TO PLACE THE DEFENDANT ON NOTICE OF THE CLAIM AND THE GROUNDS UPON WHICH IT RESTS. The district court concluded that Harrison did not plead his medical inquiries claim in his complaint, and only raised the claim in response to Benchmark's motion for summary judgment. R.32 at 12. To the contrary, however, in his complaint Harrison pled this claim in a manner that was more than adequate to satisfy federal pleading rules. In order to sufficiently plead a claim in a complaint, a plaintiff need only present "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), sufficient to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombley, 550 U.S. 544, --, 127 S. Ct. 1955, 1964 (2007). See also Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 974 (11th Cir. 2008) (same). To satisfy this pleading rule, a plaintiff need not provide "detailed factual allegations." Bell Atlantic, 550 U.S. at --, 127 S. Ct. at 1964 (citations omitted). Rather, it is sufficient for a plaintiff to present "only enough facts to state a claim to relief that is plausible on its face," id. at --, 127 S. Ct. at 1974-that is, factual allegations that "'raise a right to relief above the speculative level'" and that, if taken as true, suggest a violation of the law. Davis, 516 F.3d at 974 (quoting Bell Atlantic, 550 U.S. at --, 127 S. Ct. at 1965). The manner in which Harrison presented his medical inquiries claim satisfies this pleading standard. In paragraph ten of his complaint, under the heading "Count I - ADA," Harrison states the following factual basis for his medical inquiries claim: "In July 2006, defendant learned plaintiff had epilepsy after questioning him following a preemployment drug test that showed the presence of the medication that controls plaintiff's seizures." In paragraph twelve, Harrison alleged these facts were a violation of the ADA, stating, "Defendant violated the ADA by forcing plaintiff to answer prohibited medical questions prior to making an offer of employment to him." This was sufficient to "state a claim for relief that is plausible on its face" and put Benchmark "on fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic, 550 U.S. at --, --, 127 S. Ct. at 1964, 1974. The district court asserted that the evidence supporting Harrison's medical inquiries claim-that he was asked questions about his disability as part of the drug testing follow-up, and in the presence of Anthony-cannot be "stretched" into a medical examination claim. However, to the extent the court believed that the factual allegations presented by Harrison in response to Benchmark's summary judgment motion are inconsistent with what he pled in his complaint, the court was incorrect and its conclusion ran contrary to well-established pleading principles. In Bell Atlantic, the Supreme Court observed that it was the "accepted pleading standard" that, "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic, 550 U.S. at --, 127 S. Ct. at 1969. Harrison's pleading and evidence on summary judgment are sufficiently harmonious to satisfy Bell Atlantic. The pleading provided that "defendant learned plaintiff had epilepsy after questioning him following a preemployment drug test," and Harrison testified that Anthony: (1) informed him that he failed the drug test because he had barbiturates in his system; (2) told Harrison to speak with someone on the phone regarding the drug test; and (3) was in the room with Harrison when he answered the disability-related questions posed to him over the phone by stating, inter alia, that he has epilepsy. Not only is this evidence consistent with the factual allegations in the complaint, it is consistent with the ADA violation alleged-that Harrison was forced to answer prohibited medical questions regarding his disability prior to receiving an offer of employment. Accordingly, there is no impermissible "stretching" of the evidence here in order to satisfy Rule 8(a)(2)'s liberal pleading requirements. Benchmark's attempt to analogize Harrison's pleading of his medical inquiry claim with the pleading found inadequate in Grimsley v. Marshalls of MA, Inc., No. 07-15102, 2008 WL 2435581 (11th Cir. 2008) (unpublished), is without merit. See R.31 at 3-4 (Defendant's Reply to Response to Motion for Summary Judgment). In Grimsley, the Court concluded that the plaintiff failed to adequately plead his medical inquiries claim because the only place improper medical inquiries were discussed in his complaint was in a list of alleged conduct by the defendant that the plaintiff claimed created a disability-based hostile work environment. Grimsley at *5-*6. The Court noted that "the only disability discrimination Grimsley alleged is a hostile work environment." Id. at *6. In Harrison's complaint, however, he used separate paragraphs to discuss the factual allegations supporting his medical inquiries and failure to hire/termination claims, and specifically identified his three distinct claimed ADA violations in paragraph twelve, stating, "[d]efendant violated the ADA by forcing plaintiff to answer prohibited medical questions prior to making an offer of employment to him, by refusing to hire him based on a perceived disability, and by terminating him based on a perceived disability." (emphasis added). As such, Harrison's pleading was more than adequate to satisfy Rule 8(a)(2) and does not implicate the problem faced by the plaintiff in Grimsley. III. THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT THE DEFENDANT VIOLATED THE ADA'S PROHIBITION ON PREEMPLOYMENT MEDICAL EXAMINATIONS AND INQUIRIES. The district court concluded that, even if a private cause of action exists for violations of the ADA's ban on disability-related preemployment medical inquiries and examinations, and Harrison had properly pled this claim in his complaint, his claim would still fail on the merits. R.32 at 14. This, the court reasoned, was because Benchmark's alleged conduct was not a prohibited medical inquiry but instead a permitted test for illegal drug use, and its questioning was permissible in response to Harrison's testing positive for barbiturates. Id. at 15-17. There is evidence, however, that Benchmark's questioning went far beyond permissible follow-up questioning regarding the drug test, and therefore the district court erred in concluding on summary judgment that Benchmark's conduct could not be found unlawful. As outlined above, employers are generally not permitted to make preemployment disability-related medical examinations and inquiries of applicants. See supra at 6-7. The district court was correct in recognizing that employers must be able to conduct follow-up questioning in response to a drug test result that is positive for a controlled substance. R.32 at 16-17 & 17 n.12. What the court did not appreciate, however, is that the ADA's medical inquiries rules prescribe clear limits to that questioning. In regard to the ADA's exception for inquiries regarding illegal drug use, follow-up inquiries must be narrowly tailored to the purpose of determining whether the substance found in the applicant's system was taken legally or illegally, such as "What medications have you taken that might result in this positive test result?" or "Are you taking this medication under a lawful prescription?" EEOC Enforcement Guidance: Preemployment Disability- Related Questions and Medical Inquiries, No. 915-002, at 10 (Oct. 10, 1995) (Add. at A-8). This is because Congress recognized the possibility that testing for the presence of illegal drugs could lead to the disclosure of medical information about the applicant that does not pertain to illegal drug use-information that is protected from disclosure regardless of the drug testing provision. The ADA's exemption for drug testing "should not conflict with the right of individuals who take drugs under medical supervision not to disclose their medical condition before a conditional offer of employment has been given." H.R. Rep. 101-485 pt. 2, at 79 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 361-62 (Add. at A-6); see also H.R. Rep. No. 101-485 pt. 3, at 47 (1990), as reprinted in 1990 U.S.C.C.A.N. 445, 470 (House Committee on the Judiciary report on the ADA) (same) (Add. at A-7). Accordingly, employers must "ensure that any drug test given before a conditional job offer will be used to test strictly for the illegal use of drugs and not for drugs that are taken legally pursuant to medical supervision." H.R. Rep. No. 101-485 pt. 3, at 47 (1990), as reprinted in 1990 U.S.C.C.A.N. 445, 470 (Add. at A-7). Nor may an employer ask questions about the lawful use of drugs revealed in the test if the question is likely to elicit information about a disability. EEOC Enforcement Guidance: Preemployment Disability- Related Questions and Medical Inquiries, No. 915-002, at 9-10 (Oct. 10, 1995) (Add. at A-8). For example, as soon as the applicant reveals that the positive test result was from proper use of a prescription drug, the employer may not follow up with questioning about the underlying condition the medication is prescribed to treat. In addition, and consistent with congressional intent to protect individuals' medical information revealed in a drug test, any information regarding the medical condition or history of the applicant obtained from the drug test, other than information regarding the illegal use of drugs, is to be treated as a confidential medical record just like medical information acquired from any other source. 29 C.F.R. Pt. 1630 Appx. § 1630.16(c) (Add. at A-5). Accordingly, an employer who follows up on a positive drug test result with questions that are likely to elicit information about a disability, but not necessary for determining if the detected drug use was legal or illegal, and thereafter fails to maintain the confidentiality of the applicant's disability-revealing responses that do not pertain to illegal drug use, violates the ADA's medical inquires and examinations provisions. In this case, there is ample evidence in the record to support a reasonable jury's conclusion that this is exactly what Benchmark did to Harrison. Harrison testified that after taking his drug test, but before he had been offered a job, Anthony took Harrison to his office and had him speak on the phone with someone about his drug test. R.24, Ex. A at 18 (Harrison Dep. at 69). During the call, Harrison was asked questions that went well beyond what was needed to determine if his drug use was illegal-what the medication was for, and how long Harrison had had his disability. R.24, Ex. A at 18 (Harrison Dep. at 70). This testimony would support a reasonable jury's finding that Benchmark's follow-up inquiries after Harrison's positive test result were not necessary to determine if the drug use was illegal, but were instead disability-related questions that violated the ADA's ban on preemployment medical inquires and examinations. The district court also believed it relevant that there was no evidence that Anthony could hear the specific questions asked over the phone. R.32 at 14-15. However, whether Anthony heard the questions is irrelevant to the claim that Benchmark violated the ADA by asking the questions. As discussed above, the statute makes the asking of such questions illegal, and there is no question that Harrison produced evidence that Benchmark subjected him to illegal questioning in response to his testing positive on the drug test. Moreover, we note that the evidence that Anthony was present and did hear Harrison answer the questions about his disability (stating that he has epilepsy and providing other details about his medical condition) is more than sufficient to support a reasonable jury's conclusion that the manner in which Benchmark conducted its follow-up drug test inquiries was unlawful. Any medical information the employer receives as a result of a test for illegal drug use (other than information about the illegal use of drugs) must be maintained as a confidential medical record. See 29 C.F.R. § 1630.16(c)(3) (Add. at A-4); 29 C.F.R. Pt. 1630 Appx. § 1630.16(c) (Add. at A-5). Indeed Anthony testified that he knew he should not have any involvement whatsoever with the drug test process, other than referring Harrison to Benchmark's human resources department, and should not be present while Harrison spoke with the Medical Review Officer. R.27 Ex. 1 at 51 (Anthony Dep. at 201-02). This evidence would support a finding that Benchmark did not take adequate safeguards to protect the confidentiality of the medical information it was seeking from Harrison, and, therefore, violated the ADA's confidentiality provision. CONCLUSION For all the aforementioned reasons, the Commission respectfully requests that the Court reverse the district court's grant of summary judgment to Benchmark as to Harrison's claim that the company violated the ADA by failing to abide by the statute's requirements regarding preemployment medical examinations and inquiries and remand the case for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT BLACKWOOD Acting Associate General Counsel ________________________ JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rule 32(a)(7)(B). This brief contains 4,837 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. ________________________ JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov ADDENDUM CERTIFICATE OF SERVICE I hereby certify that one original and six copies of the foregoing brief were sent this 13th day of February, 2009, by FedEx Next Day Air, postage prepaid, to the Clerk of this Court. I further certify that one copy of the foregoing brief was sent this 13th day of February, 2009, by FedEx Next Day Air, postage prepaid, to the following counsel of record for Plaintiff- Appellant and Defendant-Appellee, respectively: Henry F. Sherrod, III, Esq. Henry F. Sherrod, III, P.C. 119 South Court St. Florence, AL 35631 Allen L. Anderson, Esq. Michael L. Fees, Esq. Stacy L. Moon, Esq. Fees & Burgess P.C. 213 Green St. Huntsville, AL 35801 ________________________ JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov *********************************************************************** <> <1> The Commission expresses no opinion on any other issues presented in this appeal. <2> While the record is unclear on this point, it appears that Harrison was speaking with a Medical Review Officer, or "MRO," whose job it was to clarify issues arising from drug tests. See R.24 at 5 (Defendant's Brief in Support of Summary Judgment) (Discussing the MRO's role in Harrison's drug test); R.28 at 16 (Plaintiff's Response to Defendant's Motion for Summary Judgment) (same). Lena Williams, a Benchmark human resources employee, testified that she "got a phone call from our MRO office who actually takes care of if there's anything in question" regarding drug tests, that the MRO was trying to contact Harrison, and that she put Harrison in touch with the MRO. R.24 Ex. E at 2-3 (Williams Dep. at 5, 9-10). <3> The court also assumed, without deciding, that the ADA's preemployment medical examinations and inquires restrictions apply regardless of whether the applicant is an individual with a disability. R.32 at 13-14 n.10. The court also noted that Benchmark did not argue that a non-disabled individual could not pursue such a claim. Id. <4> Although Harrison was already working at Benchmark's plant as a contract employee of Aerotek, both parties have treated the drug test administered in conjunction with his application for permanent employment with Benchmark as a preemployment inquiry subject to 42 U.S.C. § 12112(d). <5> This Court has not yet decided this question. See Bennett v. Dominguez, No. 06-10867, 196 Fed. Appx. 785, 793 (11th Cir. 2006) (unpublished).