Roberts v. Rayonier, Inc. (1st Cir.) Amicus brief Dec. 2, 2004 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 04-14031-FF ________________________ TERRY ROBERTS, Plaintiff-Appellant, v. RAYONIER, INC., Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Middle District of Florida, Jacksonville Division District Court No. 03-00055-CV-J-25-TEM _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT _______________________________________________________ ERIC S. DREIBAND U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel LORRAINE C. DAVIS 1801 L Street, NW, 7th Floor Acting Associate General Counsel Washington, DC 20507 (202) 663-4813 MEGUMI K. FUJITA Attorney Roberts v. Rayonier, Inc., No. 04-14031-FF Page C-1 of 1 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to 11th Cir. R. 26.1-1, I hereby certify that the following persons or entities have an interest in the outcome of this case: Patrick D. Coleman, Co-Counsel for Defendant-Appellee Lorraine C. Davis, Acting Associate General Counsel, EEOC Eric S. Dreiband, General Counsel, EEOC Equal Employment Opportunity Commission, Amicus Curiae Megumi K. Fujita, Attorney, EEOC Michael G. Pendergast, Co-Counsel for Defendant-Appellee Rayonier, Inc., Defendant-Appellee Terry Roberts, Plaintiff-Appellant David B. Sacks, Counsel for Plaintiff-Appellant Pursuant to the Federal Rule of Appellate Procedure 26.1, the Equal Employment Opportunity Commission, as a government agency, is not required to file a corporate disclosure statement. _________________________ Megumi K. Fujita TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . . . . . . . .C-1 TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . .ii TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . .. . . . . . .iii STATEMENT OF INTEREST . . . . . . . . . . . . . . . . ..1 STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . ..1 SUMMARY OF ARGUMENT . . . . . .. . . . . . . . . . . . . . . . . . .3 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 I. THE DISTRICT COURT ERRED IN CONCLUDING THAT ROBERTS' ADA CHALLENGE TO RAYONIER'S ASSESSMENT TEST IS FORECLOSED BECAUSE HE IS NOT DISABLED. . . . . . . . . . 4 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . .12 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES page * Conroy v. N.Y. State Dep't of Corr. Servs., 333 F.3d 88 (2d Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . 7,10 * Cossette v. Minn. Power & Light, 188 F.3d 964 (8th Cir. 1999). . . . . . . . .7 Cripe v. City of San Jose, 261 F.3d 877 (9th Cir. 2001) . . . . . . . . . . . . . 10 Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). . . . . . . . . . . . .5 * Fredenberg v. Contra Costa County Dep't of Health Servs., 172 F.3d 1176 (9th Cir. 1999). . . . . .. . . . . . . . . . . . . . .7,10 Griffith v. Steelteck Inc., 160 F.3d 591 (10th Cir. 1998). . . . . . . . . . . . 8 Lamie v. United States Trustee, 124 S.Ct. 1023 (2004). . . . . . . . . . . . . . .5 Roberts v. Rayonier, Inc., 326 F. Supp. 2d 1323 (M.D. Fla. 2004) . . . . . . . .4 * Roe v. Cheyenne Mountain Conf. Resort, Inc., 124 F.3d 1221 (10th Cir. 1997) . . . . . . . . . .. . . . . . . . . . . . . . . 7,8 FEDERAL STATUTES AND REGULATIONS 42 U.S.C. 12101 et seq . . . . . . . . . . . . . . . . . 1 42 U.S.C. 12102(2)(A)-(C). . . . . . . . . . . . . . . . . . . .5, 6 42 U.S.C. 12111(4) . . . . . . . . . . . . . . . . . . 5, 6 42 U.S.C. 12112(d)(2)(A). . . . . . . . . . . . . . 8 42 U.S.C. 12112(d)(4)(A). . . . . . . .. .1, 4, 5, 6, 7, 8,10 29 C.F.R. 1630.13(b) . . . . . . . . . . . . . . . . .6 OTHER AUTHORITIES Appendix to Part 1630-Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. 1630, pt. 1630, App. 1630.13(b). . . . . . . . . .7 EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), EEOC Notice No. 915.002, (July 27, 2000), available at http://www.eeoc.gov/ policy/docs/guidance-inquiries.html . . . . . . . . . . . . . 5, 6, 9, 10 S. Rep. No. 101-106 (1989). . . . . . . .. . . . . 6 H.R. Rep. No. 101-485, pt. 2 (1990). . . . . . . . . . . . . . . . . . . . . . .7 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission (EEOC or Commission) is the agency charged by Congress with the administration, interpretation and enforcement of Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq. This appeal raises an important question of first impression in this Court regarding whether the ADA requires an employee to establish that he is disabled in order to make a claim that his employer mandated that he submit to a skills assessment test in violation of the statute. Because of the importance of this issue to the effective enforcement of the ADA, the Commission respectfully offers its view to the Court. STATEMENT OF THE ISSUE Whether the district court erred, as a matter of law, in concluding that an employee must be an individual with a disability to make a claim that his employer's mandated skills assessment test constituted an unlawful medical examination or inquiry under the ADA, 42 U.S.C. 12112(d)(4)(A). STATEMENT OF FACTS Plaintiff-Appellant Roberts began his employment with Defendant-Appellee Rayonier in 1983, in Seattle, Washington, as Labor Relations Manager. R.122 at 59- 60. In 1993 or 1994, Roberts became Director, Labor Relations and Counsel. Id. at 61-62. Roberts was also responsible for advising Rayonier's Senior Vice President of Administration, John P. O'Grady. Id. at 76. For at least the past 20 years, Rayonier and its predecessor have used a skills assessment test which Rayonier contends determines the strengths and weaknesses of applicants and employees to assist in finding the positions best suited for them. R.61 at 23-25; R. 54, Att. 3. Some prospective employees and all executive employees at Level 19 and above are required to take the assessment test. R.54, Att. 3. For reasons unknown, Roberts was not required to take the assessment test when he was hired or when his position was upgraded to level 19 in 1989 or 1990. R.122 at 188. O'Grady became aware of this oversight in late 2000 or early 2001 and told Roberts that he was required to be assessed. R.61 at 85-86. O'Grady arranged for the assessment test to be scheduled. R.122 at 190. Roberts requested to be excused from the assessment test on three separate occasions but O'Grady refused to do so. R.61 at 298, 342-45. On May 18, 2001, Roberts brought O'Grady two letters. R.54, Att. 1. The first letter, from Roberts' doctor, stated that the assessment would be "adverse" to Roberts' physician-patient relationship. R.54, Att. 2; R.122 at 242-43. The second letter, from attorney Archibald Thomas, stated that Thomas represented Roberts and asked that the assessment be canceled as an ADA accommodation. R.54, Att. 15; R.122. at 240. Upon receiving these letters O'Grady became visibly upset and said he felt betrayed, cornered and thought Roberts was provoking him. R.61 at 296, 322, 325. O'Grady told Roberts that he was disloyal and had picked the wrong issue to fight over. Id. at 307, 318. He also told Roberts that he could quit rather than take the assessment test. Id. at 299, 311. O'Grady also told Roberts that he did not take threats very well and informed Roberts that he did not have a disability. Id. at 297, 308-309. Eventually, Roberts was told that the assessment test would be postponed but remained a condition of his employment. R.122 at 241, 245; R.60 at 111. Roberts' employment was terminated effective June 13, 2001, and he never took the assessment test. R.60 at 117. SUMMARY OF ARGUMENT The ADA prohibits an employer from conducting a mandatory medical examination or inquiry regarding whether an employee is an individual with a disability or as to the nature or severity of such disability, unless the examination or inquiry is job-related and consistent with business necessity. The district court erred when it determined that because Roberts is not disabled he was precluded from alleging that Rayonier illegally required him to take a skill assessment test. The plain language of the statute, its legislative history, the case law, and EEOC's regulation and policy guidance all support the position that an employee need not be disabled to assert a claim that an employer illegally required the employee to submit to a medical examination under 12112(d)(4)(A) of the ADA. ARGUMENT I. THE DISTRICT COURT ERRED IN CONCLUDING THAT ROBERTS' ADA CHALLENGE TO RAYONIER'S ASSESSMENT TEST IS FORECLOSED BECAUSE HE IS NOT DISABLED. In this case, the district court declined to address whether the assessment test violated the ADA because it determined that Roberts was not an individual with a disability. Roberts v. Rayonier, Inc., 326 F. Supp.2d 1323, 1333 (M.D. Fla. 2004). The district court wrongly concluded that disability status is a prerequisite for asserting such a claim. Id. The ADA specifically states that: A covered entity shall not conduct a medical examination or make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of such disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. 42 U.S.C. 12112(d)(4)(A) (emphasis added). It is the EEOC's interpretive position that the plain statutory language "makes clear that the ADA's restrictions on [medical] inquiries and examinations apply to all employees, not just those with disabilities." EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), 6, EEOC Notice No. 915.002 (July 27, 2000), available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html (Enforcement Guidance). The Court should give effect to the plain language of 12112(d)(4)(A) and conclude that Roberts need not be disabled in order to assert a claim challenging the skills assessment test as an unlawful medical examination under the ADA. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003) (noting that where the words of the statute are unambiguous, "the judicial inquiry is complete"). It is well established that when, as in this instance, the statute's language is plain, "the sole function of the courts . . . is to enforce it according to its terms." Lamie v. United States Trustee, 124 S. Ct. 1023, 1030 (2004) (internal citations and quotations omitted). The language of 12112(d)(4)(A) refers broadly to employees and is not limited to those with disabilities. Congress explicitly used the term "employee" rather than "individual with a disability," as it did in other provisions of the ADA, and the statute provides different definitions for an "employee" and an "individual with a disability." 42 U.S.C. 12102(2)(A)-(C), 12111(4). Under the ADA, an "employee" is "an individual employed by an employer." 42 U.S.C. 12111(4). On the other hand, an "individual with a disability" is a person who has "a physical or mental impairment that substantially limits one or more of the major life activities of such individual; . . . [has] a record of such an impairment; or . . . [is] regarded as having such an impairment." 42 U.S.C. 12102(2)(A)-(C). The fact that Congress defined two separate groups consisting of "employees" and "individuals with a disability" illustrates Congress' intent to identify two distinct categories of individuals persons who are employed by covered entities and persons with a disability. It is the EEOC's position that unlike other provisions of the ADA which refer to "qualified individuals with disabilities," the use of the term "employee" reveals that Congress intended to cover a class of individuals broader than those with disabilities. Enforcement Guidance at 7. The EEOC's regulations explicitly refer to "employees," providing that "it is unlawful for a covered entity to require a medical examination of an employee or to make inquiries as to whether an employee is an individual with a disability or as to the nature or severity of such disability." 29 C.F.R. 1630.13(b) (emphasis added). Furthermore, the purpose of 12112(d)(4)(A) is to prevent employers from asking questions and conducting medical examinations of employees that serve no job- related purpose. See S. Rep. No. 101-106 at 39-40 (1989) ("An inquiry or medical examination that is not job-related serves no legitimate employer purpose, but simply serves to stigmatize the person with a disability."); H.R. Rep. No. 101-485, pt. 2, at 75 (1990) (same); see also 29 C.F.R. pt. 1630 App., 1630.13(b) ("It is the purpose of this provision is to prevent the administration to employees of medical tests or inquiries that do not serve a legitimate purpose."). Requiring an employee to show that he has a disability to challenge the necessity of a medical examination would defeat this purpose. Roe v. Cheyenne Mountain Conf. Resort, Inc., 124 F.3d 1221, 1229 (10th Cir. 1997) ("It makes little sense to require an individual to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability.") (internal citations and quotations omitted). While this Court has yet to determine the issue, other circuit courts have found this distinction in the plain language of the statute to be dispositive. In Conroy v. New York State Department of Correctional Services, 333 F.3d 88, 94-95 (2d Cir. 2003), the Second Circuit Court of Appeals noted that, "[i]n contrast to other parts of the ADA, the statutory language of [12112(d)(4)(A)] does not refer to qualified individuals with disabilities but instead merely to 'employees.'" See also Fredenberg v. Contra Costa County Dep't of Health Svcs., 172 F.3d 1176, 1182 (9th Cir. 1999) (same). The Eighth Circuit Court of Appeals noted in Cossette v. Minnesota Power & Light, 188 F.3d 964, 969 (8th Cir. 1999), that the statutory language of "employee" "stands in stark contrast to the ADA's general prohibition of disability discrimination, which provides that employers shall not 'discriminate against a qualified individual with a disability.'" Further, in Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d at 1229, the court found that 12112(d)(4)(A) explicitly applies to all employees and is not limited to qualified individuals with disabilities. The use of term "employee" in 12112(d)(4)(A) "defining a broader class of people than the class specified elsewhere in the ADA (the class of qualified individuals with disabilities) cannot be accidental, and it points inextricably to the broader scope of coverage intended for [that section]." Griffith v. Steelteck, Inc.,160 F.3d 591, 594 (10th Cir. 1998). Therefore, the plain language of the statute, its legislative history, the case law, and EEOC's policy guidance all support the EEOC's position that the district court erred when it determined that Roberts needed to be disabled to make a claim that he was illegally mandated to undergo an assessment test. To hold otherwise would defeat the purpose of this provision in the statute. No other circuit court of appeals that has dealt with this issue on the merits has held differently. Because the district court erred in concluding that an employee must be disabled to challenge, under the ADA, the legitimacy of a medical assessment, the court did not conduct the proper inquiry as to whether the assessment test was a medical examination prohibited under the statute. Only disability-related inquiries and involuntary medical examinations are subject to the prohibitions of this section of the ADA. Enforcement Guidance at 8. In evaluating the skills assessment, a court should determine whether the examination "seeks information about an individual's physical or mental impairments or health." Id. at 11. The following factors should be considered: (1) whether the test is administered by a health care professional; (2) whether the test is interpreted by a health care professional; (3) whether the test is designed to reveal an impairment or physical or mental health; (4) whether the test is invasive; (5) whether the test measures an employee's performance of a task or measures his/her physiological responses to performing the task; (6) whether the test is normally given in a medical setting; and (7) whether medical equipment is used. Id. at 11-12. Medical examinations include psychological tests that are designed to identify a mental disorder or impairment. Id. at 12. On the other hand, psychological tests that only measure personality traits such as honesty, preference, and habits are generally not considered to be medical examinations. Id. at 12-13. If it is determined that Rayonier's assessment test constitutes a medical examination under this standard, Rayonier may seek to avoid liability by demonstrating that the assessment test is job-related and consistent with business necessity. 42 U.S.C. 12112(d)(4)(A). The appropriate analysis on this defense requires an inquiry as to whether the employer has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions would be impaired by a medical condition; or (2) an employee would pose a direct threat due to a medical condition. Id. at 17. The burden of proving either of these conditions is on the employer. Frendenberg, 172 F.3d at 1182. In order to meet this burden "an employer must show more than that its inquiry is consistent with 'mere expediency.' An employer cannot simply demonstrate that an inquiry is convenient or beneficial to its business. Instead, the employer must show that the asserted 'business necessity' is vital to the business." Conroy, 333 F.3d at 97 (quoting Cripe v. City of San Jose, 261 F.3d 877, 890 (9th Cir. 2001)). CONCLUSION For all of the foregoing reasons, the EEOC respectfully submits that the district court erred when it determined that Roberts was foreclosed from raising a claim, under the ADA, that Rayonier unlawfully required him to submit to a skills assessment test because he failed to establish that he was disabled. The Commission urges this Court to reverse that ruling. Respectfully Submitted, ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel _____________________ MEGUMI K. FUJITA Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202)663-4813 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitations set forth in Fed. R. App. P. 32(a)(7)(B)(i). The brief contains 3,111 words. Megumi K. Fujita CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of December, 2004, two copies of the attached brief were sent by Federal Express, postage prepaid, to the following counsel of record: David B. Sacks, Esq. 1824 Atlantic Boulevard Jacksonville, Florida 32207 Michael G. Prendergast, Esq. Patrick D. Coleman, Esq. Coffman, Coleman, Andrews & Grogan 800 W. Monroe St. Jacksonville, Florida 32202 Megumi K. Fujita __________________________________________ 1. EEOC appears as amicus curiae in this case to address only the issue stated. The Commission does not express any views on other issues that this appeal may raise. 2. Citations to the record refer to the district court docket entries and are abbreviated “R.” followed by the district court’s docket number. 3.In Griffith, the Tenth Circuit Court of Appeals found that a job applicant need not be disabled to allege that certain pre-employment medical examinations or inquiries were prohibited under 42 U.S.C. § 12112(d)(2)(A). Griffith v. Steelteck, Inc.,160 F.3d at 594 (“It is important that neither [§§ 12112(d)(2) (A) nor 12112(d)(4)(A)] uses the narrower defined term of ‘qualified individual with a disability,’ which is the term Congress used in much of § 12112 but chose not to use it in § 12112(d)(2)(A) or § 12112(d)(4)(A).”).