As we’ve commented before, disability claims are particularly poor fodder for class actions. Unlike other protected traits, there are often threshold questions as to whether an individual is even in a protected class. Even in those instances where the lead plaintiff is disabled, there may be questions as to which disabilities might be covered – blindness, for example, is completely unlike a lifting restriction – and the extent to which a particular type of disability might affect a particular job or job function. Taking all of these together, it is difficult in many instances to cobble together a class consistent with the requirements of commonality, typicality, superiority, and predominance.
In a recent case from the Western District of Washington, Bryan v. Wal-Mart Stores, Inc., Case No. C13-5934 RBL (W.D. Wash. Mar. 4, 2014), the employer, according the complaint, adopted a policy in 2011 that prohibited pharmacists with a record of adverse pharmacy board action from employment. The plaintiff alleged that he was a former prescription drug addict who worked in a store when the policy took effect. In the past, he had been charged with 17 counts of forging prescriptions and had surrendered his pharmacist’s license for five years after completing rehabilitation. He blamed the violations on his addiction. Although he had worked at a store as a pharmacy technician for several years, he was terminated when the company adopted the new policy. He brought suit, purportedly on a class-wide basis, contending that the new policy violated the ADA by discriminating against those with a history of drug abuse.
The court more or less rejected arguments that the plaintiff was not disabled, but had little difficulty in concluding that the plaintiff’s termination was not illegal. The policy did not bar employment for former drug users, or drug addicts, but, rather, those with negative pharmacy board actions. Put another way, the employer was not required to distinguish between conduct that might have been caused by a disability and conduct that was not. As it was undisputed that the plaintiff’s pharmacy license suspension was due to forging prescriptions, his termination was not illegal.
Bryan is a good, common-sense decision disposing of a questionable ADA claim at an early stage. Even had the case not been dismissed, one can only wonder whether it could have survived as a class. Proceeding as a class would have raised myriad issues regarding the nature and extent of the offenses leading to discipline before the pharmacy board, the extent to which that conduct was caused by drug use, the extent and success of rehabilitation efforts, recidivism, and many other factors. Further, particularly in the realm of a pharmacy, in which patient safety is paramount and controlled substances abound, employers should be given leeway to ensure that their operations are being run lawfully.
The Bottom Line: While it is difficult to maintain an ADA class action due to differences among individual disabilities, it is especially difficult when the employer’s policies target conduct, not condition, and there is a valid safety reason.