Owusu-Ansah v. The Coca-Cola Co.: Protection against Psychological Fitness-for-Duty Evaluations under the ADA’s “Prohibited Examinations and Inquiries” Clause Restricted in the Eleventh Circuit
On May 8, 2013, the United States Court of Appeals for the Eleventh Circuit published an opinion in Owusu-Ansah v. The Coca-Cola Company, No. 11-13663 (11th Cir. May 8, 2013). The question before the court was whether the defendant employer had violated the “prohibited examinations and inquiries” provision of the Americans with Disabilities Act (“ADA”) when it placed the plaintiff employee on a paid leave of absence and required him to undergo a psychiatric/psychological fitness-for-duty evaluation. The Eleventh Circuit held that no violation of the pertinent ADA provision had occurred.
Case Facts: Defendant Coca-Cola first employed plaintiff-appellant Franklin Owusu-Ansah, a native of Ghana, as a customer service representative at a local call center in 1999. The company eventually promoted Owusu-Ansah to a quality assurance specialist position in 2005. He worked from home in that capacity but reported to the call center for meetings as required. While attending one such meeting in December 2007, Owusu-Ansah apprised his immediate supervisor that various managers and co-workers had discriminated against him on the basis of his national origin. The plaintiff’s supervisor later informed a human resources manager of Owusu-Ansah’s comments—adding that he had become agitated, that he had banged his hand on a table, and that he’d stated someone was “going to pay.”
Having concluded that Owusu-Ansah had threatened employees of the company, the HR manager persuaded Owusu-Ansah to speak with an independent consulting psychologist about the matter. The consultant later expressed concern to Coca-Cola that the plaintiff might be delusional. Armed with the psychologist’s recommendation for further evaluation, Coca-Cola placed Owusu-Ansah on paid leave. Though the plaintiff subsequently agreed to visit a psychiatrist, he refused to answer the doctor’s work-related questions during the evaluation.
On the advice of the psychologist, Coca-Cola informed Owusu-Ansah in early February 2008 that he would be required to undergo a psychiatric/psychological fitness-for-duty evaluation to determine whether he had a mental condition that would interfere with his ability to perform his job duties. The company further stated that the failure to do so would result in immediate termination. Owusu-Ansah underwent the evaluation as scheduled, but he then learned that he would also be required to undergo a personality examination. When Owusu-Ansah neglected to attend the personality assessment meeting, Coca-Cola notified him that the failure to undergo the evaluation by mid-March 2008 would be deemed a voluntary resignation. Owusu-Ansah underwent the assessment on March 20, 2008, scored within normal limits, and was restored to his position with Coca-Cola in late April 2008.
Procedural History/Rule of Law: Once cleared to return to work, Owusu-Ansah filed a lawsuit against Coca-Cola, alleging that subjecting him to the evaluation at issue represented a violation of 42 U.S.C. § 12112(d)(4)(A), a provision of the ADA. The pertinent portion of the same reads as follows:
A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
Coca-Cola subsequently filed a motion for summary judgment—contending that the examination/inquiry at issue had been both “job-related and consistent with business necessity.” The district court granted the defendant’s motion, and the Eleventh Circuit Court of Appeals affirmed.
Analysis: The Eleventh Circuit first concluded that the portion of the ADA at issue—the prohibited examinations and inquiries clause—applied to all employees, not just the disabled. In support of its opinion, the court noted that the clause at issue made no allusion to limiting its application to qualified individuals (i.e., those meeting the criteria for disability under the statute).
The Eleventh Circuit next evaluated the meanings of the terms “job-related” and “consistent with business necessity” utilized at 42 U.S.C. § 12112(d)(4)(A). The court borrowed from its opinion in Allmond v. Akal Sec., Inc., 558 F.3d 1312 (11th Cir. 2009)—noting that “’job-relatedness is used in analyzing the questions or subject matter contained in a test or criteria used by an employer’ as a basis for an employment decision, while ‘[b]usiness necessity, in context, is larger in scope and analyzes whether there is a business reason that makes necessary the use by an employer of a test or criteria’ for such a decision.” Id. at 1317.
The court noted that, in Watson v. City of Miami Beach, 177 F.3d 932 (11th Cir. 1999), it had held that a police department could consider a fitness for duty examination job-related where it reasonably believed an officer to be “even mildly paranoid, hostile, or oppositional.” Id. at 935. The Eleventh Circuit also alluded to language from Williams v. Motorola, Inc., 303 F.3d 1284 (11th Cir. 2002) wherein it noted that “an employer could have lawfully required [a] medical examination for [an] employee who was hostile, made threats, and was insubordinate.” Id. at 1290-91. In Williams, supra, the court further stated that an “evaluation was ‘job-related’ because an ‘employee’s ability to handle reasonably necessary stress and work reasonably well with others are essential functions of any position.” Id. at 1290.
The Eleventh Circuit noted that, in the case at issue, Coca-Cola had demonstrated that it had a reasonable, objective concern about Owusu-Ansah’s mental state where: (1) the plaintiff’s supervisor had reported her concerns about his demeanor and what were later deemed threatening comments following their meeting of December 2007; (2) the plaintiff had refused to discuss his workplace difficulties with the HR Manager or psychiatrist; (3) the consulting psychologist had expressed significant concern about the plaintiff’s emotional and psychological stability and thereafter recommended the fitness-for-duty evaluation at issue; and (4) the plaintiff “had access to and was required to attend meetings at the Dunwoody call center.” Owusu-Ansah, supra, at *12.
The Eleventh Circuit maintained that Coca-Cola’s decision to require the fitness-for-duty evaluation would be “consistent with business necessity” for the same reason that it would be considered “job-related.” The court noted that ensuring a safe and secure work environment could be a business necessity. See, e.g., E.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d 1276 (7th Cir. 1995) (“It would seem that a requirement that employees not pose a significant safety threat in the workplace would obviously be consistent with business necessity: a safe workplace is a paradigmatic necessity of operating a business.”) Id. at 1283.
In challenging the grant of summary judgment to Coca-Cola, Mr. Owusu-Ansah relied upon the enforcement guidelines issued by the EEOC establishing when medical examinations are permissible under 42 U.S.C. § 12112(d)(4)(A). The aforementioned guidelines indicate that an employer can only establish that the examination at issue is both “job related and consistent with business necessity” where the employer can demonstrate a “reasonable belief, based upon objective evidence, that (1) [the] employee’s ability to perform essential job functions [would] be impaired by a medical condition; or (2) [the] employee [would] pose a direct threat due to a medical condition” [citation omitted]. Owusu-Ansah, supra, at *14.
Though the Eleventh Circuit acknowledged that it found the EEOC enforcement guidance persuasive, it did not agree with the plaintiff that doing so meant that a reversal was in order. The court first noted that Coca-Cola could establish a legitimate concern (i.e., “reasonable belief, based upon objective evidence”) regarding the plaintiff’s ability to perform essential job functions for the same four reasons mentioned in its “job-relatedness” analysis. Mr. Owusu-Ansah argued, however, that Coca-Cola had to also hold a reasonable belief based on objective evidence that he would pose a “direct threat” because of the purported medical condition. The court disagreed with that assessment—noting that the EEOC’s guidelines indicated that the employer need only present evidence of a “direct threat” if it could not present the “objective evidence” required under the guidelines.
Wrap-Up: The Eleventh Circuit Court of Appeals’ holding in Owusu-Ansah imposes certain restrictions upon the application of the “prohibited examinations and inquiries” clause of the ADA in matters involving psychological/psychiatric testing of employees. The court indicates that, where an employer can demonstrate that its inquiry into an employee’s potential disability is justified by an objectively reasonable concern that the employee may not be able to perform his/her job duties—or that the employee poses a potential danger to those in the workplace—the court will not require that the employer present evidence that the employee in question poses a “direct threat” to those in the work environment.
Author: Sybil Bates McCormack, Esq.