Equal Employment Opportunity Commission v. Dolgencorp, LLC

Filing 131

MEMORANDUM OPINION - For the reasons discussed above, the EEOC and Mr. Jackson have established as a matter of law that Dollar General violated GINA. The Court denies Dollar General's motion for summary judgment on the EEOC's and Mr. Jackso n's 42 U.S.C. §§ 12112(b)(6) and 12112(a) ADA claims. Finally, the Court regards the EEOC's and Mr. Jackson's 42 U.S.C. § 12112(d)(3) ADA claim as a duplicate claim that the Court will dismiss. By separate order, the Court will set the EEOC's and Mr. Jackson's remaining ADA claims and their GINA claim, with respect to damages, for trial. Signed by Judge Madeline Hughes Haikala on 7/26/2022. (KEK)

FILED
2022 Jul-26 PM 02:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

EQUAL
EMPLOYMENT }
OPPORTUNITY COMMISSION,
}
}
Plaintiff,
}
}
and
}
}
VINCENT JACKSON,
}
}
Plaintiff-Intervenor,
}
v.
}
}
DOLGENCORP, LLC,
}
}
Defendant.
}

Case No.: 2:17-cv-01649-MHH

MEMORANDUM OPINION
In this case, the Equal Employment Opportunity Commission, on behalf of
unsuccessful Dollar General job applicants, challenges Dollar General’s hiring
practices. Vincent Jackson, one of the unsuccessful job applicants, challenges Dollar
General’s hiring practices individually, (Docs. 1, 41). The EEOC and Mr. Jackson
contend that Dollar General violated the Americans with Disabilities Act and the
Genetic Information Nondiscrimination Act because, when hiring general
warehouse workers for its Bessemer, Alabama facility, the company used a postoffer medical examination that screened out some applicants based on actual or

perceived disabilities. Third-party Middle Creek Medical Center conducted the
medical exams for Dollar General.1
The EEOC and Dollar General have filed cross motions for summary
judgment on the employees’ GINA claim.2 Dollar General has filed a motion for
summary judgment on the plaintiffs’ ADA claims. This opinion resolves these
pending motions. The opinion begins with a discussion of the standard that a district
court uses to evaluate motions for summary judgment. Then, consistent with the
summary judgment standard, the Court identifies the evidence that the parties have

Mr. Jackson’s complaint, (Doc. 41), is nearly identical to the EEOC’s complaint, (Doc. 1). In
their complaints, in addition to their GINA claims, the EEOC and Mr. Jackson bring three ADA
claims: a claim under 42 U.S.C. § 12112(a); a claim under 42 U.S.C. § 12112(b)(6); and a claim
under 42 U.S.C. § 12112(d)(3). Mr. Jackson’s claims and the EEOC’s claims rest on identical
factual allegations. Therefore, the Court analyzes Mr. Jackson’s claims and the EEOC’s claims
together and cites to the EEOC complaint when discussing the plaintiffs’ allegations.
1

Plaintiffs may plead multiple ADA claims, but to pursue those claims simultaneously, the plaintiffs
must allege a distinct factual basis for each clam. Jean-Pierre v. Naples Cmty. Hosp., Inc., 817
Fed. Appx. 822, 828 (11th Cir. 2020). Where plaintiffs’ ADA claims under various statutory
provisions rest on identical factual allegations, the alternative claims are duplicative and do not
require separate analysis on a motion for summary judgment. Jean-Pierre, 817 Fed. Appx. at 828.
The plaintiffs brought their § 12112(d)(3) claim under a separate count, (Doc. 1, pp. 8-9; Doc. 41,
pp. 8-9), but no plaintiff alleges a distinct factual basis for this claim. Rather, the plaintiffs reiterate
their uniform factual allegations, noting that Dollar General “used the results of its post-offer
medical examinations to screen out qualified individuals with disabilities using criteria that are
neither job-related nor consistent with business necessity.” (Doc. 1, p. 9, ¶ 29; Doc. 41, p. 9, ¶ 29).
The quoted language is copied directly from § 12112(b)(6). Thus, the Court regards the plaintiffs’
§ 12112(d)(3) claim as duplicative of the plaintiffs’ § 12112(b)(6) claim.
Accordingly, the Court analyzes two ADA claims: the plaintiffs’ § 12112(b)(6) claim on behalf
of the entire “ADA class” and the plaintiffs’ § 12112(a) claim on behalf of Mr. Jackson. The Court
will address whether the § 12112(a) claim was properly pleaded later in the opinion.
2

Mr. Jackson has not moved for summary judgment on his GINA claim separately.

submitted. Finally, the Court evaluates the evidence under the governing legal
standards, considering first the ADA claims and then the GINA claim.
I.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a district court
“shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). To demonstrate that a genuine dispute as to a material fact
precludes summary judgment, a party opposing a motion for summary judgment
must cite “to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials.” FED. R. CIV. P. 56(c)(1)(A). “The court need consider
only the cited materials, but it may consider other materials in the record.” FED. R.
CIV. P. 56(c)(3). When considering a summary judgment motion, a district court
must view the evidence in the record in the light most favorable to the non-moving
party and draw reasonable inferences from that evidence in favor of the non-moving
party. Sconiers v. Lockhart, 946 F.3d 1256, 1260 (11th Cir. 2020).
“The standard of review for cross-motions for summary judgment does not
differ from the standard applied when only one party files a motion, but simply
requires a determination of whether either of the parties deserves judgment as a

matter of law on the facts that are not disputed. The Court must consider each motion
on its own merits, resolving all reasonable inferences against the party whose motion
is under consideration.” Alabama Municipal Ins. Corp. v. Scottsdale Ins. Co., 297
F. Supp. 3d 1248, 1252 (N.D. Ala. 2017) (quoting Southern Pilot Ins. Co. v. CECS,
Inc., 52 F. Supp. 3d 1240, 1242-43 (N.D. Ga. 2014)). “Cross motions for summary
judgment may be probative of the nonexistence of a factual dispute. Indeed, when
both parties proceed on the same legal theory and rely on the same material facts the
court is signaled that the case is ripe for summary judgment.” Shook v. U.S., 713
F.2d 662, 665 (11th Cir. 1983) (internal citation omitted).
II.
Dollar General, a national discount retailer, operates a distribution center in
Bessemer, Alabama. (Doc. 103-2, pp. 22-23, tpp. 21-22). The Dollar General
distribution center receives retail products, stores them, and distributes the products
to the company’s retail locations. Warehouse workers manage the product traffic at
the Bessemer facility. (Doc. 103-2, pp. 56-64, tpp. 55-63).
To hire employees for its Bessemer distribution center, Dollar General uses a
multi-step process. When an individual applies for a job as a Dollar General general
warehouse worker, she must submit an online application. (Doc. 103-2, p. 41, tp.
40). Dollar General’s HR department interviews applicants, either in person or by
phone. (Doc. 103-2, p. 41, tp. 40). Applicants who pass the first interview then

interview on-site at the distribution center with a warehouse supervisor. (Doc. 1032, pp. 41-42, tpp. 40-41). Following the on-site interview, some applicants receive
a job offer contingent on a pre-employment background check, physical
examination, and drug test. (Doc. 103-2, p. 47, tp. 46). Applicants receiving a
contingent job offer from the Bessemer facility must visit Middle Creek Medical
Center for a physical examination and drug test. (Doc. 103-2, p. 47, tp. 46).
Middle Creek Medical Center is an urgent care center. (Doc. 104-19, p. 23,
tp. 22). In addition to treating “episodic medical conditions,” Middle Creek offers
“pre-employment physicals, drug screens, and hearing tests.” (Doc. 104-19, pp. 23,
24, tpp. 22, 23). In 2011, Middle Creek verbally agreed to provide pre-employment
medical services for Dollar General. (Doc. 104-19, pp. 25-26, tpp. 24-25). In
January of 2012, Middle Creek began performing pre-employment medical
examinations for Dollar General. (Doc. 104-19, p. 43, tp. 42).
At the beginning of a physical examination, a job candidate must complete a
“Physical Encounter Questionnaire” designed by Dollar General. (Doc. 104-19, p.
59, tp. 58). The questionnaire includes a series of “yes” or “no” questions. (Doc.
104-19, p. 316). The questions are divided into several categories, one of which is
“Medical History.” (Doc. 104-19, p. 316). For a period of time, the “Medical
History” section contained the following question:

“Have your grandparents,

parents, or children had significant medical problems?” (Doc. 104-19, p. 316). After

job candidates completed the questionnaire, Middle Creek staff question candidates
about the candidates’ family medical history. (See e.g., Doc. 102-9, p. 8; Doc. 1051, p. 61, tp. 59).3 On August 22, 2014, Dollar General sent Middle Creek an updated
questionnaire without the question about family medical history. (Doc. 102-7, p.
8).4
3

According to Brittney Busbee, a medical professional at Medical Creek, Dollar General job
candidates were asked follow-up questions about their family history only if they indicated on the
questionnaire that their grandparents, parents, or children had significant medical problems. (Doc.
105-1, pp. 61-62, tpp. 59-60).
4

The updated questionnaire was attached to an email from Rick Sumner, Director of Insurance
and Safety at Dollar General. The email states:
Dear Carla [Busbee],
Thank you for administering Dollar General’s post offer, pre-employment physical
evaluation. Please ensure that you are using the updated attached documents and
forms when administering the evaluation. I have also attached a document that
generally outlines the process for the evaluation. As you are aware, the Genetic
Information Nondiscrimination Act of 2008 (GINA) prohibits employers from
requesting or requiring genetic information of an individual or family member of
the individual, except as specifically allowed by the law. Genetic information as
defined by GINA, includes an individual’s family medical history, the results of an
individual’s or family member’s genetic tests, the fact that an individual or
individual’s family member sought or received genetic services, and genetic
information of a fetus carried by an individual or individual’s family member or an
embryo lawfully held by an individual or family member receiving assistive
reproductions services. To help ensure continued compliance with this law, when
relaying the results of the evaluation, you should not provide Dollar General with
any genetic information about the candidate. You should only inform Dollar
General (on the form provided) whether the candidate is qualified, not qualified or
referred to his or her PMD. Please do not provide any other information to Dollar
General. Please ensure these new documents are implemented immediately.
Please do not hesitate to contact me with questions or concerns about this
information.
Regards,

In addition to collecting information in writing about candidates’ medical
history, Middle Creek staff take the candidate’s vitals and perform a vision test, a
urinalysis, a hearing evaluation, and a physical examination “including [a] hernia
check for males.” (Doc. 104-19, p. 362). Middle Creek uses a form labeled “Dollar
General Physical Requirements” which lists the following benchmarks for a
“qualified” rating:
NOT Qualified if [blood pressure] > 160/100
Vision must be 20/50 or better
If color blind, [employee] still passes
MUST pass peripheral vision screen
(Doc. 104-19, p. 362).5 The form instructs Middle Creek staff to fax to Dollar
General the final page of the questionnaire, indicating whether the candidate was

Rick Sumner
(Doc. 102-7, p. 2).
5

The parties dispute whether Dollar General or Middle Creek set these requirements, especially
the benchmarks for vision and blood pressure. Nick Orefice, Dollar General’s HR Generalist,
opined during his deposition that these requirements were likely created at Dollar General’s
“corporate level.” (Doc. 103-1, pp. 64-65, tpp. 63-64). Carla Busbee, Middle Creek’s 30(b)(6)
representative, also indicated that these requirements came from Dollar General. (Doc. 104-19,
pp. 74, 101, 103, tpp. 73, 100, 102). Elizabeth Deslattes, a nurse practitioner at Middle Creek,
suggested that Middle Creek may have come up with the requirements. (Doc. 104-1, pp. 96-97,
tpp. 95-96). Similarly, Rick Sumner stated he thinks Middle Creek developed the checklist and
that it was not provided by Dollar General. (Doc. 104-21, p. 154, tp. 153).
This fact is relevant only to the plaintiffs’ ADA claims, not their GINA claim. And for purposes
of the ADA claims, because only Dollar General moves for summary judgment, the Court views
this evidence in the light most favorable to the non-movants, the EEOC and Mr. Jackson. Thus,

qualified, not qualified, or referred to a primary medical doctor for further
evaluation. (Doc. 104-19, p. 362). Middle Creek complies. (Doc. 104-1, p. 71, tp.
70; Doc. 103-2, pp. 28-29, tpp. 27-28).
“Qualified” means that the person was “medically capable of performing the
job.” (Doc. 104-1, pp. 106-07, tpp. 105-06). “Referred to PMD” sometimes means
that the person was not qualified to do the job; it also may mean that Middle Creek
felt it needed more information before making a final determination. (Doc. 104-1,
p. 107, tp. 106). According to Elizabeth Deslattes, a nurse practitioner at Middle
Creek, rating a candidate “not qualified” “didn’t necessarily mean they weren’t
physically able to do the job.” (Doc. 104-1, p. 107, tp. 106).
The job applicants represented by the EEOC, including Mr. Jackson, received
ratings of either “not qualified” or “referred to PMD.” None of the applicants
became an employee of Dollar General. Mr. Jackson was rated “not qualified” after
failing the vision test. (Doc. 102-9, p. 11). According to Dollar General, Mr.
Jackson refused to complete the physical examination after being informed that he
failed the vision test. (Doc. 102-9, p. 11). Mr. Jackson testified that he wanted to
finish the examination. (Doc. 105-8, p. 266, tp. 265). The Court accepts Mr.

for purposes of this opinion, the Court assumes that Dollar General provided these requirements
to Middle Creek.

Jackson’s version of the facts for purposes of Dollar General’s summary judgment
motion.
III.
ADA “Screen Out” Claim
The EEOC and Mr. Jackson assert that the pre-employment medical
examination that Middle Creek conducted on behalf of Dollar General screened out
the 24 job applicants the EEOC represents in this case in violation of the ADA. The
ADA prohibits employers from discriminating “against a qualified individual on the
basis of disability in job application procedures” or hiring or “other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The statute
identifies seven categories of conduct that constitute discrimination. 42 U.S.C.
§ 12112(b). Here, the EEOC brings its “screen out” claim under subsection (b)(6).
Section 12112(b)(6) prohibits an employer from discriminating against a qualified
individual on the basis of disability by:
using qualification standards, employment tests or other selection
criteria that screen out or tend to screen out an individual with a
disability or a class of individuals with disabilities unless the standard,
test or other selection criteria, as used by the covered entity, is shown
to be job-related for the position in question and is consistent with
business necessity.
42 U.S.C. § 12112(b)(6). Dollar General contends that the Court must evaluate a
§ 12112(b)(6) claim as a disparate impact claim and that a plaintiff must offer

comparative statistical evidence to prove a disparate impact claim, something neither
the EEOC nor Mr. Jackson has done. (Doc. 110, pp. 14-18).
Employment discrimination claims typically fall into two buckets: disparate
treatment claims and disparate impact claims. Raytheon Co. v. Hernandez, 540 U.S.
44, 52 (2003). As its name suggests, in a disparate treatment case, a plaintiff must
establish that his employer “simply treats some people less favorably than others”
because of a protected characteristic, here a disability. Raytheon, 540 U.S. at 52.
The “because of” requirement speaks to the employer’s intent to discriminate against
a job applicant or an employee based on a protected trait. Raytheon, 540 U.S. at 52.
In contrast, disparate impact claims examine the way in which employment policies
and practices disproportionately effect certain job applicants or employees:
disparate-impact claims “involve employment practices that are
facially neutral in their treatment of different groups but that in fact fall
more harshly on one group than another and cannot be justified by
business necessity.” Teamsters, supra, at 335–336, n. 15, 97 S.Ct.
1843. Under a disparate-impact theory of discrimination, “a facially
neutral employment practice may be deemed [illegally discriminatory]
without evidence of the employer’s subjective intent to discriminate
that is required in a ‘disparate-treatment’ case.”
Raytheon, 540 U.S. at 52-53 (quoting Teamsters v. United States, 431 U.S. 324, 33536 n.15 (1977) & Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 645-46 (1989)).
“Because ‘the factual issues, and therefore the character of the evidence presented,
differ when the plaintiff claims that a facially neutral employment policy has a
discriminatory impact on protected classes,’ Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 252, n. 5, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), courts
must be careful to distinguish between” disparate treatment claims and disparate
impact claims. Raytheon, 540 U.S. at 53.
In Raytheon, the plaintiff, Mr. Hernandez, pleaded only a disparate treatment
claim in his complaint. Raytheon, 540 U.S. at 49. At summary judgment, Mr.
Hernandez began to weave disparate impact concepts into his opposition to
Raytheon’s dispositive motion. Raytheon, 540 U.S. at 49. The Court of Appeals
held that the district court properly selected the McDonnell Douglas burden-shifting
framework to evaluate Mr. Hernandez’s ADA claim because Mr. Hernandez pleaded
only a disparate treatment claim; the Court of Appeals found that Mr. Hernandez
waited too long to attempt to pursue a disparate impact claim. Raytheon, 540 U.S.
at 49. At the first stage of the burden-shifting framework, the Court of Appeals
concluded that Mr. Hernandez established a prima facie case of discrimination.
Raytheon, 540 U.S. at 49-50. At the second stage, the stage at which Raytheon
merely had to identify, not prove, a facially legitimate reason for its employment
decision, the Court of Appeals mistakenly evaluated the merits of the rehire policy
that Mr. Hernandez challenged. Raytheon, 540 U.S. at 51-52.6 Raytheon’s rehire
6

In Raytheon, the Supreme Court outlined the McDonnell Douglas framework as follows:
The Court in McDonnell Douglas set forth a burden-shifting scheme for
discriminatory-treatment cases. Under McDonnell Douglas, a plaintiff must first
establish a prima facie case of discrimination. The burden then shifts to the
employer to articulate a legitimate, nondiscriminatory reason for its employment

policy, neutral on its face, was “by definition, a legitimate, nondiscriminatory reason
under the ADA” for Raytheon to refuse to rehire Mr. Hernandez. Raytheon, 540
U.S. at 51-52. The Court of Appeals criticized the policy under the ADA because
the policy operated to exclude from rehire recovered addicts. The Supreme Court
rejected the Court of Appeals’ analysis and explained that at stage two, the impact
of the policy on addicts was irrelevant. The Supreme Court held that at stage two,
the Court of Appeals should have deemed Raytheon’s facially-neutral rehire policy
a non-discriminatory reason for the company’s hiring decision and proceeded to
stage three to examine Mr. Hernandez’s evidence of discriminatory intent.
Raytheon, 540 U.S. at 51-52. The Supreme Court noted that by considering the
impact of Raytheon’s rehire policy on addicts at stage two, “the Court of Appeals
erred by conflating the analytical framework for disparate-impact and disparatetreatment claims.” Raytheon, 540 U.S. at 51.
Mindful of the Supreme Court’s instruction that courts must be careful to
distinguish between disparate treatment claims and disparate impact claims,
Raytheon, 540 U.S. at 53, we turn to the EEOC’s allegations against Dollar General

action. 411 U.S., at 802, 93 S.Ct. 1817. If the employer meets this burden, the
presumption of intentional discrimination disappears, but the plaintiff can still
prove disparate treatment by, for instance, offering evidence demonstrating that the
employer’s explanation is pretextual.
Raytheon, 540 U.S. at 49 n.3.

to identify the ADA claims at issue in this case. The EEOC alleges that Dollar
General:
discriminated against Jackson, a qualified individual with a disability,
and a class of qualified individuals with disabilities, when it failed to
hire Jackson and the [ADA class] for general warehouse positions
because of disability, perceived disability and/or record of disability.
[Dollar General] further discriminated against Jackson and the class
when it used post-offer medical examinations to screen out individuals
with disabilities by means of exclusionary criteria that were neither jobrelated nor consistent with business necessity.
(Doc. 1, pp. 1-2; see also Doc. 41, pp. 1-2). The first sentence identifies a disparate
treatment claim concerning Dollar General’s decision not to hire Mr. Jackson
because of his alleged actual or perceived disability.7 The second sentence concerns
a screen out claim. The “ADA Class” for the screen out claim consists of Mr.
Jackson and 23 other individuals who Middle Creek, on Dollar General’s behalf,
screened out in the hiring process based on vision, blood pressure, or blood sugar.
(Doc. 1, p. 7, ¶¶ 25(b)-(f)). As mentioned, the EEOC asserts the disparate treatment

See Raytheon, 540 U.S. at 53 (explaining “that respondent’s case was limited to a disparatetreatment theory, that the company refused to rehire respondent because it regarded respondent as
being disabled and/or because of respondent’s record of a disability”).
7

The EEOC mentions an “ADA class” in its description of its disparate treatment claim, but the
EEOC provides factual allegations to support a disparate treatment claim only for Mr. Jackson. In
the parties’ Rule 26 report, the EEOC characterizes its class claim as a medical screening claim.
(Doc. 37, p. 2). The Court regards the EEOC’s disparate treatment claim as only an individual
claim for Mr. Jackson. Mr. Jackson asserts an individual disparate treatment claim in his
complaint. (Doc. 41, pp. 5-8, ¶¶ 22-24).

claim and the screen out claims pursuant to 42 U.S.C. §§ 12112(a) and (b)(6). (Doc.
1, pp. 5, 7, ¶¶ 22, 25).
Some courts have held that § 12112(b)(6) pertains only to disparate impact
claims. See, e.g., Fulbright v. Union Pacific Railroad Co., No. 3:20-CV-2392-BK,
2022 WL 625082, at *3 (N.D. Tex. Mar. 3, 2022); EEOC v. BNSF Railway Co., NO.
C14-1488 MJP, 2016 WL 98510, at *5 (W.D. Wash. Jan. 8, 2016). Dollar General
urges the Court to follow suit in this case. Other courts have allowed plaintiffs to
pursue disparate treatment claims under § 12112(b)(6). See, e.g., Gonzales v. City
of New Braunfels, Tex., 176 F.3d 834, 839 (5th Cir. 1999) (examining medical
screening claim by individual plaintiff as a disparate treatment claim and noting that
plaintiff did not plead a disparate impact claim under § 12112(b)(6)); Toole v. Metal
Services, LLC, 17 F. Supp. 3d 1161 (S.D. Ala. 2014) (applying the McDonnell
Douglas framework, though noting the plaintiff alleged that the physical
examination had a “disparate impact” on the plaintiff). Neither the Supreme Court
nor the Eleventh Circuit Court of Appeals has held explicitly that a plaintiff may
pursue only a disparate impact claim under § 12112(b)(6).
Dicta in Raytheon undergirds the argument that § 12112(b)(6) pertains only
to disparate impact claims. In Raytheon, in discussing the Court of Appeals’
erroneous analysis of the substance of Raytheon’s rehire policy at stage two of the
McDonell Douglas framework, the Supreme Court commented:

[T]he Court of Appeals observed that petitioner’s policy “screens out
persons with a record of addiction,” and further noted that the company
had not raised a business necessity defense, factors that pertain to
disparate-impact claims but not disparate-treatment claims.
Raytheon, 540 U.S. at 54 (citation to Court of Appeals’ decision omitted); see
Fulbright, 2022 WL 625082 at *3 (“The Supreme Court appears to have also
positioned section 12112(b)(6) exclusively in the disparate-impact category,
although it has not definitively held as much.”) (citing Raytheon, 540 U.S. at 53).8

8

In Raytheon, the Supreme Court appears to associate disparate treatment claims with the language
of § 12112(b)(3) and disparate impact claims with the language of § 12112(b)(6). Using the
language of these two subsections, the Supreme Court wrote:
Both disparate-treatment and disparate-impact claims are cognizable under the
ADA. See 42 U.S.C. § 12112(b) (defining “discriminate” to include “utilizing
standards, criteria, or methods of administration ... that have the effect of
discrimination on the basis of disability” and “using qualification standards,
employment tests or other selection criteria that screen out or tend to screen out an
individual with a disability”).
540 U.S. at 53. By identifying disparate-treatment claims first and using the language of
§ 12112(b)(3) first in its parenthetical, the Supreme Court seemed to link disparate-treatment
claims with § 12112(b)(3) and disparate-impact claims with § 12112(b)(6).
This Court observes that, because it speaks of standards that have the “effect” of discriminating,
§ 12112(b)(3), rather than § 12112(b)(6), seems to address disparate-impact claims. In its entirety,
§ 12112(b)(3) provides that an employer discriminates against a qualified individual on the basis
of a disability by:
(3) utilizing standards, criteria, or methods of administration-(A) that have the effect of discrimination on the basis of disability; or
(B) that perpetuate the discrimination of others who are subject to common
administrative control[.]
42 U.S.C. § 12112(b)(3) (emphasis added). In contrast, § 12112(b)(6) speaks to standards and
employment tests that expressly “screen out” individuals on the basis of disability, a direct form
of selective hiring. Respectfully, the Court tends to think that Congress attempted to capture

Importantly, Raytheon concerned a facially-neutral hiring policy. The Supreme
Court stated that courts dealing with facially-neutral policies and procedures must
evaluate the effect of the policy on a suspect group; the employer’s intent is not at
issue in those cases. Raytheon, 540 U.S. at 52-53.
In Raytheon, the company “had a policy against rehiring employees who were
terminated for workplace misconduct.” Raytheon, 540 U.S. at 47. Because Mr.
Hernandez’s separation summary indicated that he previously had left his job at
Raytheon because of employee misconduct, the employee who reviewed Mr.
Hernandez’s application for rehire declined the application. The employee who
made the hiring decision indicated that she did not know that the misconduct for
which Mr. Hernandez lost his job was drug abuse, but the record revealed that Mr.
Hernandez submitted with his job application a letter from an Alcoholics
Anonymous counselor, suggesting that the employee who declined Mr. Hernandez’s
application for rehire may have been aware of Mr. Hernandez’s record of addiction.
Raytheon, 540 U.S. at 47. Still, Raytheon’s rehire policy was not targeted at actual
or perceived disabilities; the policy embraced all categories of employee
misconduct. The Supreme Court emphasized this point throughout its opinion,
describing Raytheon’s informal rehire policy as a “neutral company policy” that was

disparate-impact claims under § 12112(b)(3) and disparate-treatment screen out claims under
§ 12112(b)(6).

“lawful on its face.” Raytheon, 540 U.S. at 50-51. In this context, the Supreme
Court indicated that courts should evaluate facially-neutral employment policies as
disparate impact claims. Raytheon, 540 U.S. at 52-53 (citing Atonio, 490 U.S. at
645-46).
The plain language of § 12112(b)(6) does not limit discrimination actions
brought under the subsection to actions involving facially-neutral employment
policies. As discussed, § 12112(b)(6) prohibits an employer from discriminating
against a qualified individual on the basis of disability by:
using qualification standards, employment tests or other selection
criteria that screen out or tend to screen out an individual with a
disability or a class of individuals with disabilities unless the standard,
test or other selection criteria, as used by the covered entity, is shown
to be job-related for the position in question and is consistent with
business necessity.
42 U.S.C. § 12112(b)(6).

Qualification standards, employment tests, or other

selection criteria that screen out or tend to screen out an individual with a disability
or a class of individuals with disabilities may appear in a facially-neutral
employment policy, but employers also may adopt policies that expressly and
intentionally screen out individuals with disabilities. In the latter category of screen
out cases, the employment policy constitutes direct evidence of discriminatory
intent.

An employer attempting to avoid liability for disparate treatment of

employees based on its screening policy may do so by establishing that the screening

standard is “job-related for the position in question” and “consistent with business
necessity.” 42 U.S.C. § 12112(b)(6).
The Sixth Circuit Court of Appeals discussed direct evidence “screen out”
cases in Monette v. Electronic Data Systems, Corp., 90 F.3d 1173 (6th Cir. 1996),
abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d
312 (6th Cir. 2012). The Court of Appeals explained that “employers often rely on
an employee’s disability in making employment decisions, a fact rarely present in
Title VII race or gender discrimination cases” and that “when an employer admits
(or the evidence establishes) that its decision was based upon the employee’s
disability, direct evidence of discrimination exists.” Monette, 90 F.3d at 1180. In
direct evidence cases, courts do not need to use the McDonnell Douglas burdenshifting framework for cases that rest on circumstantial evidence of discriminatory
intent or the disparate impact analysis attendant to facially-neutral employment
policies that have a disproportionate effect on a protected group. Monette, 90 F.3d
at 1180. Instead, when an employer relies partially or entirely on an applicant’s
disability in making a hiring decision, to prove his ADA claim, an applicant either
may establish that he can perform the requirements of the job despite his disability
or he may “challenge[] a particular job requirement as unessential.” Monette, 90
F.3d at 1182. In the latter instance, the employer “bears the burden of proving that
a particular hiring policy is ‘job-related’ and ‘consistent with business necessity;’”

the job applicant “retains the burden of proving that he or she is qualified to perform
the essential functions of the job absent the challenged job requirement.” Monette,
90 F.3d at 1184; see also Rohr v. Salt River Project Agricultural Imp. & Power Dist.,
555 F.3d 850, 862 (9th Cir. 2009) (“Once an employee shows that a qualification
standard tends to screen out an individual with a disability, the employer shoulders
the burden of proving that the challenged standard is job-related and consistent with
business necessity.”).
The Court finds the reasoning of Monette persuasive. Therefore, the Court
rejects Dollar General’s contention that § 12112(b)(6) pertains only to disparate
impact claims and that a plaintiff may prove a discrimination claim under
§ 12112(b)(6) only by offering comprehensive statistical evidence. Another feature
of the plain language of § 12112(b)(6) bolsters this conclusion. Generally, under
employment discrimination statutes, plaintiffs bring disparate impact claims on
behalf of groups of applicants or employees who suffer disproportionate harm
because of an employer’s facially-neutral policy, and plaintiffs establish those
claims with statistical evidence. Raytheon, 540 U.S. at 52-53; Hallmark Developers,
Inc. v. Fulton County, Georgia, 466 F.3d 1276, 1286 (11th Cir. 2006) (“Typically,
a disparate impact is demonstrated by statistics.”).

But under the ADA,

§ 12112(b)(6) expressly authorizes not only class claims but also individual claims
based on an employer’s screening policy. 42 U.S.C. § 12112(b)(6). In other words,

a disabled individual may assert a claim under § 12112(b)(6) and may prove that his
employer’s qualification standards, employment tests, or other selection criteria
screened him out. Gonzales, 176 F.3d at 839 n.26 (“In the ADA context, a plaintiff
may satisfy the second prong of his prima facie case by demonstrating an adverse
impact on himself rather than on an entire group. 1 Barbara Lindemann & Paul
Grossman, Employment Discrimination Law 333–34 (3d ed.1996).”); Williams v.
ABM Parking Services Inc., 296 F. Supp. 3d 779, 789 (E.D. Va. 2017) (“[A]
disparate impact claim under the ADA differs from a disparate impact claim under
other federal statutes, such as Title VII. Under § 12112(b)(6), claims can be brought
either by an individual plaintiff or by a class of individuals. . . . [A]n ADA disparate
impact claim need not present statistical evidence if he or she can show that a job
qualification screens out the plaintiff on the basis of his or her disability.”).9

9

In support of its argument that the EEOC must produce statistical evidence to prove its disparate
impact claim, Dollar General cites Smith v. Miami-Dade County, 621 Fed. Appx. 955 (11th Cir.
2015). In Smith, the Eleventh Circuit stated:
Further, to establish a prima facie case of disparate impact, a plaintiff must provide
comparative evidence showing that a policy has a disparate impact on the disabled.
See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1218 (11th Cir.2008)
(holding that a district court correctly rejected a disparate-impact claim because the
plaintiff completely failed to present relevant comparative evidence). It is not
sufficient to show that a few people are affected by a policy. See id. (“[S]imply
showing that a few houses are affected by an ordinance does not come close to
establishing disparate impact.”). The disparity of the evidence provided must be
substantial enough to raise an inference of causation. Armstrong v. Flowers Hosp.,
Inc., 33 F.3d 1308, 1314 (11th Cir.1994).
[The plaintiff]’s disparate-impact claim stems from [the defendant]’s no-rehire
policy, which prevents former employees with a history of long-term absences from

For an individual to prove a prima facie screen out claim under § 12112(b)(6)
of the ADA, a plaintiff “must (i) identify the challenged employment practice or
policy, (ii) demonstrate that the practice or policy had an adverse impact on the
plaintiff with a disability, and (iii) demonstrate a causal relationship between the
identified practice and the [adverse] impact.” Williams, 296 F. Supp. 3d at 789
(citing generally Gonzalez, 176 F.3d 834). “To assert a business necessity defense,

being rehired. [The plaintiff], however, has provided none of the evidence
necessary to make out a prima facie case. Her argument that she was adversely
affected by the no-rehire policy is insufficient and does not show a significant
discriminatory effect on disabled individuals as a group. Thus, the district court
did not err in granting summary judgment on [the plaintiff]’s disparate-impact
claim.
Smith, 621 Fed. Appx. at 961-62. The decisions that the Eleventh Circuit cited in this passage are
not ADA decisions. In Schwarz, the Eleventh Circuit examined a disparate impact claim under
the Fair Housing Act. Schwarz, 544 F.3d at 1217. In Armstrong, the Eleventh Circuit examined
a disparate impact claim under Title VII. Armstrong, 33 F.3d at 1312, 1314. Unlike the ADA,
neither the FHA nor Title VII expressly authorizes an individual to maintain a disparate impact
claim. Smith involved a facially-neutral employment policy, so it falls in the Raytheon category
of cases that examine the effect of an employment policy on a group of applicants or employees,
but not all disparate impact cases concern facially-neutral employment policies. Because it is an
unpublished opinion, the Smith decision is persuasive authority, not binding precedent. U.S. v.
Izurieta, 710 F.3d 1176, 1179 (11th Cir. 2013). Significantly, Ms. Smith was pro se, and she
offered little authority to save her claim on appeal. Appellant’s Reply Brief at 15-21, Smith, 621
Fed. Appx. 955 (No. 14-12566). Nothing in the Smith record or in the Smith decision suggests
that Ms. Smith developed arguments like those on which the EEOC relies in this case. For these
reasons, Dollar General’s reliance on Smith is misplaced.
The Court has located one binding decision in which the Eleventh Circuit evaluated an individual
plaintiff’s ADA screen out claim under § 12112(b)(6). Allmond v. Akal. Sec., Inc., 558 F.3d 1312
(11th Cir. 2009). Because the Eleventh Circuit based its decision in that case on the business
necessity affirmative defense to a § 12112(b)(6) claim, the Eleventh Circuit did not consider the
statutory nature of a § 12112(b)(6) claim. Allmond v. Akal. Sec., Inc., 558 F.3d at 1316 (“[W]e
focus our attention solely on the affirmative business-necessity defense and its application to the
hearing-aid ban. We express no view on whether Allmond is disabled under federal law and just
assume that he is disabled for the sake of discussion.”).

the defendants must show that the allegedly discriminatory qualification requirement
is (i) job-related, (ii) consistent with business necessity, and (iii) that performance
cannot be accomplished with a reasonable accommodation.” Williams, 296 F. Supp.
3d at 790 (citing Bates v. United Parcel Service, Inc., 511 F.3d 974, 993 (9th Cir.
2007)).
Here, the EEOC alleges, and the evidence, viewed in the light most favorable
to the EEOC and Mr. Jackson, demonstrates, that Dollar General required job
applicants to undergo a post-offer medical examination, and Dollar General deemed
not qualified for employment in Dollar General’s Bessemer warehouse applicants
whose corrected vision did not measure 20/50 or better in both eyes, whose blood
pressure measured 160/100 or higher, and/or whose blood sugar exceeded a certain
threshold. (Doc. 1, pp. 7-8, ¶¶ 25(b)-(d) & 25(i); Doc. 104-19, p. 362; Doc. 115-16,
pp. 2-5, 8; Doc. 115-26, pp. 7-8; Doc. 115-35, p. 6). The EEOC contends that
binocular vision and blood pressure below 160/100 were not job-related
requirements for the general warehouse worker position, and the medical
qualification standards were not consistent with business necessity. (Doc. 1, pp. 78, ¶¶ 25(e)-(g) & 25(j)). On its face, Dollar General’s policy that screened out
applicants whose corrected vision did not measure 20/50 or better in both eyes and
whose blood pressure measured 160/100 or higher is direct evidence of intent to

screen out certain job applicants based on medical qualifications standards or
criteria.
Viewed in the light most favorable to the EEOC and Mr. Jackson, the
summary judgment evidence establishes a prima facie screen out claim under
§ 12112(b)(6). The EEOC and Mr. Jackson have demonstrated that the unsuccessful
job applicants who the EEOC represents, whose corrected vision did not measure
20/50 or better in both eyes or whose blood pressure measured 160/100 or higher,
either were disabled or Dollar General regarded those applicants as disabled, and
Dollar General’s screening standards had an adverse impact on those job
applicants.10
The ADA defines “disability” as (1) “a physical or mental impairment that
substantially limits one or more major life activities of [an] individual;” (2) “a record
of such an impairment;” or (3) “being regarded as having such an impairment.” 42
U.S.C. § 12102(1). “The definition of disability in this chapter shall be construed in
favor of broad coverage of individuals under this chapter, to the maximum extent
permitted by the terms of this chapter.” 42 U.S.C. § 12102(4)(A).
Federal Regulations define a physical impairment as:

10

There is not sufficient evidence in the record to establish a screen out claim based on an unstated
blood sugar level. The Court limits its analysis to unsuccessful job applicants with impaired vision
or blood pressure that exceeded 160/100.

(1) Any physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more body systems, such as
neurological, musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular, reproductive, digestive,
genitourinary, immune, circulatory, hemic, lymphatic, skin, and
endocrine[.]
29 C.F.R. § 1630.2(h). The ADA provides that “major life activities include, but are
not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A).
With respect to the meaning of the phrase “substantially limits,” the Eleventh
Circuit, in Mazzeo v. Color Resolutions Int’l, LLC, noted that Congress has amended
the statute to ensure that the phrase is interpreted broadly, and:
the EEOC, pursuant to its statutory authority to issue regulations
implementing the definition of “disability” in the ADA, see id. at
§ 12205a, has further explained that the phrase “substantially limits” is
to be “construed broadly in terms of extensive coverage” and is “not
meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i). The
EEOC’s regulations also provide that an “impairment need not prevent,
or significantly or severely restrict, the individual from performing a
major life activity in order to be considered substantially limiting;” the
phrase “substantially limits” “shall be interpreted and applied to require
a degree of functional limitation that is lower than the standard for
‘substantially limits’ applied prior to the ADAAA;” (with the exception
of glasses or contact lenses) the “determination of whether an
impairment substantially limits a major life activity shall be made
without regard to the ameliorative effects of mitigating measures;” and
an “impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity.” Id. at § 1630.2(j)(1)(ii), (iv),
(vi)-(vii).

Mazzeo, 746 F.3d 1264, 1269 (11th Cir. 2014) (adopting the EEOC’s interpretation
of the phrase “substantially limits”). Similarly, the ADA provides:
(E)(i) The determination of whether an impairment substantially limits
a major life activity shall be made without regard to the ameliorative
effects of mitigating measures such as—
(I) medication, medical supplies, equipment, or appliances, lowvision devices (which do not include ordinary eyeglasses or
contact lenses), prosthetics including limbs and devices, hearing
aids and cochlear implants or other implantable hearing devices,
mobility devices, or oxygen therapy equipment and supplies;
(II) use of assistive technology;
(III) reasonable accommodations or auxiliary aids or services; or
(IV) learned behavioral or adaptive neurological modifications.
42 U.S.C. § 12102(4)(E)(i). “In effect, these provisions require courts to look at a
plaintiff’s impairment in a hypothetical state where it remains untreated.” Lloyd v.
Housing Auth. of the City of Montgomery, Ala., 857 F. Supp. 2d 1252, 1263 (M.D.
Ala. 2012). Courts must “determine the existence of disabilities on a case-by-case
basis.” Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999).
Monocular vision – meaning an individual relies on one eye – is a physical
impairment because it is a physiological condition that affects an individual’s eyes,
a “special sense organ.” 29 C.F.R. § 1630.2(h)(1). Monocular vision also affects a
major life activity, “seeing.” 42 U.S.C. § 12102(2)(A). Dollar General argues that
monocular vision does not “substantially limit” Mr. Jackson’s nor any EEOC class

member’s ability to see. (Doc. 110, pp. 24-26).11 Because those with monocular
vision “may embrace a group whose members vary by the degree of visual acuity in
the weaker eye . . . and the ultimate scope of the restrictions on their visual abilities,”
those with monocular vision are not per se disabled. Kirkingburg, 527 U.S. at 566.
This is not to suggest that monocular individuals have an onerous
burden in trying to show that they are disabled. On the contrary, our
brief examination of some of the medical literature leaves us sharing
the Government’s judgment that people with monocular vision
“ordinarily” will meet the [ADA]’s definition of disability . . . and we
suppose that defendant companies will often not contest the issue. We
simply hold that the [ADA] requires monocular individuals, like others
claiming the [ADA]’s protection, to prove a disability by offering
evidence that the extent of the limitation in terms of their own
experience, as in loss of depth perception and visual field, is substantial.
Kirkingburg, 527 U.S. at 567 (internal citations omitted).
According to Mr. Jackson, the only member of the plaintiff class with
monocular vision to be deposed, from his right eye, he cannot see anything directly
ahead of him other than light. (Doc. 105-8, pp. 105-06, tpp. 104-05).12 Mr.

Dollar General contends that “particularly in cases where an individual has had monocular vision
for a long time and becomes accustomed to primarily using one eye, the condition likely does not
substantially impact a major life activity.” (Doc. 110, p. 25) (citing Littlefield v. Nevada, ex. rel.
Dep’t of Public Safety, 195 F. Supp. 3d 1147, 1153-54 (D. Nev. 2016)). But that is not the law in
the Eleventh Circuit; rather, the Court must ignore any “ameliorative effects of mitigating
measures.” Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d at 1269 (internal quotations
omitted); see also 42 U.S.C. § 12102(4)(E)(i).
11

It appears that Mr. Jackson’s peripheral vision from his right eye is not affected by his condition.
(Doc. 105-8, p. 105, tp. 104). As noted by Dollar General, Mr. Jackson stated during his deposition
that he does not consider himself disabled. (Doc. 105-8, p. 431, tp. 430). This admission is not
dispositive because a reasonable jury may conclude that, due to his condition, Mr. Jackson is
disabled under the ADA.
12

Jackson’s inability to see straight ahead with his right eye supports a reasonable
inference that “the extent of the limitation in terms of [his] own experience, as in
loss of depth perception and visual field, is substantial,” Kirkingburg, 527 U.S. at
567; which in turn creates a genuine dispute of material fact as to whether he has an
actual disability.13
Hypertension – also known as high blood pressure – is a physical impairment
because it is a physiological condition that affects an individual’s cardiovascular
system. 29 C.F.R. § 1630.2(h)(1). And hypertension affects a major life activity,
“working.” 42 U.S.C. § 12102(2)(A). As with monocular vision, Dollar General
argues that, on the record before the Court, hypertension does not “substantially
limit” the EEOC class members’ ability to work. (Doc. 110, pp. 23-24). Dollar
General mistakenly relies on the fact that two EEOC class members with
hypertension – Eric Fielder and Willie Copeland – stated that their ability to work is
not substantially limited. (Doc. 110, p. 24). Dollar General overlooks the fact that
both Mr. Fielder and Mr. Copeland take medication for hypertension. (Doc. 10514, p. 62, tp. 61; Doc. 111-14, p. 2, ¶ 7). As noted, a “determination of whether an
impairment substantially limits a major life activity shall be made without regard to
13

Carlos Carey, another EEOC class member who has difficulty seeing from one eye, twice failed
Middle Creek’s eye exam. (Doc. 115-8, pp. 3, 4, ¶¶ 8, 9, 11). Mr. Carey failed his second test
after he purchased corrective lens. (Doc. 115-8, p. 4, ¶ 10). This evidence supports a reasonable
inference that Mr. Carey’s vision is substantially limited, which in turn creates a genuine dispute
of material fact as to whether he has an actual disability.

the ameliorative effects of mitigating measures such as medication.” 42 U.S.C.
§ 12102(4)(E)(i)(I).14
While “[n]o pathologic changes occur early in hypertension[,] [s]evere or
prolonged hypertension damages target organs (primarily the cardiovascular system,
brain, and kidneys), increasing risk of [c]oronary artery disease (CAD) and
myocardial infarction, [h]eart failure, [s]troke (particularly hemorrhagic), [r]enal
failure, [and] [d]eath[.]” Toland v. BellSouth Telecommunications, LLC, NO. 1:15CV-2441-SCJ, 2017 WL 6380641, at *3 (N.D. Ga. Aug. 9, 2017) (internal footnote
omitted)

(quoting

MERCK

MANUALS,

https://www.merckmanuals.com/professional/cardiovasculardisorders/hypertension/overview-of-hypertension (last visited July 25, 2022).15
Because Mr. Fielder and Mr. Copeland have hypertension, jurors reasonably may
infer that the men are at risk of suffering the aforementioned maladies in a

Dollar General’s reliance on Morgan v. County Comm’n of Lawrence County, No. 5:14-CV01823-CLS, 2016 WL 3525357 (N.D. Ala. June 20, 2016), is misplaced. (Doc. 130, p. 6). In
Morgan, the district court stated: “The Eleventh Circuit also has held that exhaustion and high
blood pressure, without more, are not conditions that substantially impair a person’s ability to
perform major life activities, such as working.” Morgan, 2016 WL 3525357, at *28. The district
court cited to two pre-ADAA Eleventh Circuit cases which relied on the now outdated definition
of “substantially limits.”
14

15

In Harris v. H & W Contracting, the Eleventh Circuit took judicial notice in the summary
judgment context that ‘“Graves’ disease is a condition that is capable of substantially limiting
major life activities if left untreated by medication.’” Toland v. BellSouth Telecommunications,
LLC, NO. 1:15-CV-2441-SCJ, 2017 WL 6380641, at *3 (N.D. Ga. Aug. 9, 2017) (quoting Harris
v. H & W Contracting Co., 102 F.3d 516, 522 (11th Cir. 1996)). The Toland court also took
judicial notice of the risks associated with hypertension. Toland, 2017 WL 6380641, at *3.

“hypothetical state where [their hypertension] remains untreated.” Lloyd, 857 F.
Supp. 2d at 1263.16 In turn, this creates a genuine dispute of material fact as to
whether Mr. Fielder and Mr. Copeland have an actual disability.17
In any event, the evidence, viewed in the light most favorable to the EEOC
and Mr. Jackson, indicates that Dollar General regarded Mr. Jackson and the other
unsuccessful job applicants as disabled.

16

Mr. Fielder has a family history of high blood pressure, (Doc. 105-14, p. 61, tp. 60), and has
taken medication for high blood pressure since he was 19 years old, (Doc. 105-14, p. 62, tp. 61).
On the day he failed his physical examination at Middle Creek, Mr. Fielder had been off his
medication for about a month because he did not have health insurance. (Doc. 105-14, pp. 78-79,
tpp. 77-78).
Mr. Copeland failed two physical examinations at Middle Creek because of high blood pressure.
(Doc. 111-14, pp. 2-3, ¶¶ 7-9). Mr. Copeland failed his first examination after not taking his
medication on the day of the exam (due to side effects) and he failed his second examination after
starting a different medication. (Doc. 111-14, pp. 2-3, ¶¶ 7-9).
The Court’s analysis here with respect to Mr. Fielder and Mr. Copeland is similar to the analysis
in Toland, where the Northern District of Georgia found that the risks associated with hypertension
coupled with the fact that the plaintiff has hypertension are “sufficient to create a genuine issue of
material fact about whether [plaintiff’s] medical condition, in the absence of mitigating measures,
would substantially limit [his] major life activities [to include the cardiovascular/circulatory
systems].” Toland, 2017 WL 6380641, at *4 (quoting Harris, 102 F.3d at 522). Unlike the
plaintiffs here, the plaintiff in Toland had had “at least one hospitalization for blood pressure.”
Toland, 2017 WL 6380641, at *4 n.9. But this difference does not dictate a different outcome
because jurors reasonably may infer that Mr. Fielder and Mr. Copeland would be at risk of
hospitalization if they were to skip their medication for an extended period.
17

In its brief in support of its motion for summary judgment, Dollar General also relies on Toland
but for the opposite proposition—that “Toland’s assertion that he suffers from hypertension does
not establish that this physical impairment substantially limited one or more of his major life
activities.” (Doc. 110, p. 23) (quoting Toland v. BellSouth Telecommunications, Division of
AT&T, Inc., No. 1:15-cv-02441-SCJ-RGV, 2017 WL 6374873, at *7 (N.D. Ga. May 1, 2017)).
Dollar General relies on the magistrate judge’s final report and recommendation, rather than the
subsequent order from the Northern District of Georgia sustaining the plaintiff’s objection on this
very point. Toland, 2017 WL 6380641, at *4.

“[A] person is ‘regarded as’ disabled within the meaning of the ADA if
a covered entity mistakenly believes that the person’s actual,
nonlimiting impairment substantially limits one or more major life
activities.” Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521–22,
119 S.Ct. 2133, 144 L.Ed.2d 484 (1999) . . . . Thus, “[a]n employer
runs afoul of the ADA when it makes an employment decision based
on a physical or mental impairment, real or imagined, that is regarded
as substantially limiting a major life activity.” Sutton, 527 U.S. at 490,
119 S.Ct. 2139.
D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1228 (11th Cir. 2005) (quoting
Sutton v. United Air Lines, Inc., 527 U.S. 471, 490 (1999), superseded by statute,
U.S. Pub. L. No. 110-325). Using physical criteria that Dollar General established
for warehouse workers, Middle Creek indicated to Dollar General that Mr. Jackson
and the other unsuccessful job applicants were not qualified to work as warehouse
workers either because of impaired vision or blood pressure that exceeded 160/100.
Using the Middle Creek rating, Dollar General did not offer the applicants a
warehouse worker position because Dollar General regarded those applicants’ health
conditions as limiting their ability to work in the warehouse. Because Dollar General
declined to extend job offers to Mr. Jackson and the other unsuccessful job
applicants based on real or perceived physical disabilities, Dollar General’s
screening policy had a negative impact on Mr. Jackson and the other unsuccessful
applicants in violation of § 12112(b)(6).
Disputed questions of fact regarding Dollar General’s screen out policy
preclude judgment in Dollar General’s favor based on the company’s job-relatedness

and business necessity defenses. Job-relatedness and business necessity are “distinct
pillars of the affirmative defense.” Allmond, 558 F.3d at 1317.
As [the Eleventh Circuit] has explained, “[j]ob[-]relatedness is used in
analyzing the questions or subject matter contained in a test or criteria
used by an employer in making hiring or promotional decisions.”
Hamer, 872 F.2d at 1533. Business necessity, in contrast, “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 in hiring or
promotion decision making.” Id.
Allmond, 558 F.3d at 1317.
Vision tests – meant to assess one’s ability to see – and blood pressure tests –
meant to assess the likelihood that one may become suddenly incapacitated – are
job-related, satisfying the first prong of the test. This is especially true when the job
requires an individual to operate heavy machinery around other workers, as is the
case here. But Dollar General has not met its burden of showing that the physical
criteria it set for its warehouse worker position was necessary. This “defense must
be ‘based on a reasonable medical judgment that relies on the most current medical
knowledge and/or the best available objective evidence,’ and upon an expressly
‘individualized assessment of the individual’s present ability to safely perform the
essential functions of the job,’ reached after considering, among other things, the
imminence of the risk and the severity of the harm portended.” Chevron U.S.A. Inc.
v. Echazabal, 536 U.S. 73, 86 (2002) (quoting 29 C.F.R. § 1630.2(r)). Dollar
General contends that rating candidates “referred to PMD” individualized

assessments. (Doc. 130, pp. 14-15). But the evidence, viewed in the light most
favorable to the nonmoving parties, indicates that candidates rated “referred to
PMD” were effectively screened out because Dollar General did not follow up with
those applicants to explain how they could qualify for a warehouse worker
position.18
The record is replete with evidence from which jurors reasonably may infer
that the EEOC class members could safely perform the essential functions of the job,
undercutting Dollar General’s argument that screening the applicants out was a
business necessity. Notably, many EEOC class members held similar jobs, both
before and after applying to work at Dollar General, without incident, despite the
medical conditions that caused them to be screened out from Dollar General’s
warehouse worker position. (See e.g., Doc. 115-4, p. 3, ¶ 5; Doc. 115-5, p. 3, ¶¶ 3,
4; Doc. 115-6, p. 3, 4 ¶ 3, 6; Doc. 115-7, p. 4, ¶ 9). Additionally, an EEOC expert
witness, Dr. Robert Swotinsky, posited that “[t]here is not a medical or scientific
basis for excluding people from general warehouse work (or other jobs) because of

According to the EEOC, the 24 applicants “were not told whether they passed the exam, were
not told that they needed medical clearance from their doctor in order to start work, and were not
told what medical standard they needed to pass.” (Doc. 121, p. 17; see Doc. 115-4, pp. 4-6, ¶ 14
(declaration of EEOC class member Roderiquez Crumpton); Doc. 115-5, p. 4, ¶¶ 10-11
(declaration of EEOC class member John Greene); Doc. 115-12, p. 4, ¶¶ 10-11 (declaration of
EEOC class member Percy Tate); Doc. 115-9, pp. 4-5, ¶¶ 11-12 (declaration of EEOC class
member Orenthal Jordan)). Thus, viewing the evidence in the light most favorable to the 24
applicants who the EEOC represents, the EEOC has established that Dollar General screened out
this group of 24 applicants through its medical examination requirement for job applicants at the
Bessemer warehouse.
18

high blood pressure.” (Doc. 115-1, p. 15).19 According to another expert witness,
Dr. Dawn DeCarlo, “if you have one good eye, you tend to be able to do pretty much
everything that everybody else around you can do.” (Doc. 111-4, p. 49, tp. 191).
Ultimately, as mentioned above, Dollar General has not met its burden of
demonstrating that using its physical qualification standards to screen out candidates
was consistent with business necessity.
Thus, the Court denies Dollar General’s motion for summary judgment on the
EEOC’s and Mr. Jackson’s ADA “screen out” claim.
Generic ADA Disparate Treatment Claim
As discussed, in paragraphs 22 through 24 of their respective complaints, the
EEOC, on behalf of Mr. Jackson, and Mr. Jackson independently pleaded a generic
disparate treatment claim under 42 U.S.C. § 12112(a).20 Procedurally, the claim is
poorly pleaded. The Eleventh Circuit Court of Appeals “discourage[s] consideration
of ‘shotgun’ pleadings where the plaintiff asserts multiple claims of relief in single
counts and ‘it is virtually impossible to know which allegations of fact are intended
to support which claim(s) for relief.’” Kennedy v. Bell South Telecommunications,

19

20

In Doc. 115-1, Dr. Swotinsky provides reasons for these conclusions.

In Paragraph 22, the EEOC alleges violations of 42 U.S.C. § 12112(a) and 42 U.S.C.
§ 12112(b)(6), but none of the key phrases in § 12112(b)(6) – “screen out,” “tend to screen out,”
“standard,” “test,” “selection criteria,” or “business necessity” – appears in paragraphs 22 through
24. These omissions indicate that neither the EEOC nor Mr. Jackson intended the claim alleged
in paragraphs 22 through 24 to be duplicative of the claim alleged in paragraphs 25 and 26, where
the language mirrors that of a screen out claim under § 12112(b)(6).

Inc. (AT & T), 546 Fed. Appx. 817, 820 (11th Cir. 2013) (quoting Anderson v. Dist.
Bd. Of Trs. Of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996)). A pleading
which lumps multiple claims into a single count fails “to give the defendant[]
adequate notice of the claims against [it] and the grounds upon which each claim
rests.” Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313, 1323 (11th
Cir. 2015).
While the EEOC and Mr. Jackson “commit[ted] the sin of not separating into
a different count each cause of action or claim for relief,” Weiland, 792 F.3d at 1323,
their complaints provided Dollar General with adequate notice that they were
bringing a generic disparate treatment claim under § 12112(a). In its brief in support
of its motion for summary judgment, Dollar General acknowledged that the EEOC
and Mr. Jackson may have pleaded paragraphs 22 through 24 “in an effort to craft a
disparate treatment claim” on behalf of Mr. Jackson. (Doc. 110, p. 16 n.15).21 Dollar
General then explained why a disparate treatment claim must fail. (Doc. 110, p. 16
n.15). Accordingly, Dollar General will not be prejudiced by the Court addressing
the plaintiffs’ § 12112(a) claim on the merits.
Dollar General argues that the plaintiffs’ generic disparate treatment claim
“fail[s] because there is no evidence of any decisionmaker with unlawful motive:”

21

In its reply brief, Dollar General argues for the first time that the EEOC and Mr. Jackson failed
to plead a disparate treatment claim. (Doc. 130, pp. 2-3).

To the extent Jackson alleges he was treated differently by Dollar
General because of his monocular vision, it is undisputed that Dollar
General was unaware of Jackson’s monocular vision. The only
information provided to Dollar General was that Middle Creek had not
qualified Jackson because he failed the vision exam and had refused to
complete the physical. While Jackson disputes that he refused to
complete the remainder of his physical, he cannot dispute what Middle
Creek relayed to Dollar General, and this justifies Dollar General’s
honest belief that Jackson abandoned the process. This forecloses any
attempt to impute a discriminatory motive to Dollar General.
(Doc. 110, p. 16 n.15) (internal record citations omitted). But, as discussed above,
Dollar General’s version of the facts is disputed. Mr. Jackson testified that he
wanted to continue his examination, but Middle Creek would not allow him to
proceed because his impaired vision could not be corrected.22

By producing

evidence that Dollar General did not hire Mr. Jackson because of his monocular
vision, the EEOC and Mr. Jackson have demonstrated that Dollar General acted with
discriminatory intent. Moreover, as explained above, the EEOC and Mr. Jackson

22

On the form that Middle Creek faxed to Dollar General, a Middle Creek employee noted that
the “[patient] failed vision exam + then refused physical.” (Doc. 102-9, p. 11). Mr. Jackson
testified that he wanted to finish the exam. (Doc. 105-8, p. 266, tp. 265).
Elizabeth Deslattes, a Middle Creek employee, testified that Mr. Jackson refused to complete his
physical examination after he failed his eye examination. (Doc. 104-1, p. 119). According to Mr.
Jackson, after he failed his eye examination, Brittney Busbee, another Middle Creek employee,
told him that under Dollar General’s requirements he was disqualified from consideration for the
job. (Doc. 105-8, p. 373, tp. 372). Therefore, viewing the evidence in the light most favorable to
Mr. Jackson, even if Mr. Jackson refused to complete his physical examination, the effort would
have been futile because he was effectively disqualified by Dollar General’s requirement that
“[v]ision must be 20/50 or better.” (Doc. 104-19, p. 365).

have established a disputed question of material fact as to whether Mr. Jackson was
qualified to perform the essential functions of the warehouse worker job.
Thus, the Court denies Dollar General’s motion for summary judgment on the
EEOC’s and Mr. Jackson’s generic disparate treatment claim.
IV.
The Genetic Information Nondiscrimination Act of 2008 prohibits employers
from discriminating based on genetic information and acquiring genetic information.
42 U.S.C. § 2000ff-1. An employee – or an agency, such as the EEOC, acting on
behalf of an employee – may bring a GINA claim under subsection (a),
“Discrimination based on genetic information;” or subsection (b), “Acquisition of
genetic information.” 42 U.S.C. § 2000ff-1. Here, the EEOC brings its GINA claim
under subsection (b). (Doc. 1, p. 9, ¶ 34; see also Doc. 41, p. 9, ¶ 35). Under
subsection (b):
It shall be an unlawful employment practice for an employer to request,
require, or purchase genetic information with respect to an employee or
a family member of the employee except—
(1) where an employer inadvertently requests or requires family
medical history of the employee or family member of the
employee; . . . .

42 U.S.C. § 2000ff-1(b).23 Under GINA, “[t]he term ‘genetic information’ means,
with respect to any individual, information about—"
23

There are six exceptions to subsection (b). The first exception is quoted above. The remaining
five exceptions are:
(2) where—
(A) health or genetic services are offered by the employer, including such
services as part of a wellness program;
(B) the employee provides prior, knowing, voluntary, and written
authorization;
(C) only the employee (or family member if the family member is receiving
genetic services) and the licensed health care professional or board certified
genetic counselor involved in providing such services receive individually
identifiable information concerning the results of such services; and
(D) any individually identifiable genetic information provided under
subparagraph (C) in connection with the services provided under
subparagraph (A) is only available for purposes of such services and shall
not be disclosed to the employer except in aggregate terms that do not
disclose the identity of specific employees;
(3) where an employer requests or requires family medical history from the
employee to comply with the certification provisions of section 2613 of Title 29 or
such requirements under State family and medical leave laws;
(4) where an employer purchases documents that are commercially and publicly
available (including newspapers, magazines, periodicals, and books, but not
including medical databases or court records) that include family medical history;
(5) where the information involved is to be used for genetic monitoring of the
biological effects of toxic substances in the workplace, but only if—
(A) the employer provides written notice of the genetic monitoring to the
employee;
(B)(i) the employee provides prior, knowing, voluntary, and written
authorization; or
(ii) the genetic monitoring is required by Federal or State law;

(i) such individual’s genetic tests,
(ii) the genetic tests of family members of such individuals, and
(iii) the manifestation of a disease or disorder in family members of
such individual.
42 U.S.C. § 2000ff(4)(A).
Here, Dollar General does not deny that it violated GINA subsection (b). It is
undisputed that, from at least December 2013 until August 22, 2014, pursuant to

(C) the employee is informed of individual monitoring results;
(D) the monitoring is in compliance with—
(i) any Federal genetic monitoring regulations, including any such
regulations that may be promulgated by the Secretary of Labor
pursuant to the Occupational Safety and Health Act of 1970 (29
U.S.C. 651 et seq.), the Federal Mine Safety and Health Act of 1977
(30 U.S.C. 801 et seq.), or the Atomic Energy Act of 1954 (42
U.S.C. 2011 et seq.); or
(ii) State genetic monitoring regulations, in the case of a State that
is implementing genetic monitoring regulations under the authority
of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651
et seq.); and
(E) the employer, excluding any licensed health care professional or board
certified genetic counselor that is involved in the genetic monitoring
program, receives the results of the monitoring only in aggregate terms that
do not disclose the identity of specific individuals; or
(6) where the employer conducts DNA analysis for law enforcement purposes as a
forensic laboratory or for purposes of human remains identification, and requests
or requires genetic information of such employer’s employees, but only to the
extent that such genetic information is used for analysis of DNA identification
markers for quality control to detect sample contamination.
42 U.S.C. § 2000ff-1(b)(2)-(6).

Dollar General’s instructions, Dollar General’s agent, Middle Creek Medical Center,
asked Dollar General job candidates whether their grandparents, parents, or children
had significant medical problems, in violation of 42 U.S.C. § 2000ff-1(b). (See e.g.,
Doc. 104-19, p. 316).24 Instead, Dollar General argues that the EEOC and Mr.
Jackson lack standing to bring this GINA claim. (Doc. 126, pp. 5-15). Specifically,
Dollar General argues that, insofar as the EEOC and Mr. Jackson request
compensatory and punitive damages, there is no redressability because GINA does
allow for compensatory and punitive damages for claims brought under 42 U.S.C.
§ 2000ff-1(b). (Doc. 126, pp. 10-12).25 As far as the Court can tell, this is an issue
of first impression.
In its remedies and enforcement section, GINA incorporates the remedial
schemes of other statutes. 42 U.S.C. § 2000ff-6.26 With respect to the availability
of damages, GINA states:

As noted above, under GINA subsection (b), “[i]t shall be an unlawful employment practice for
an employer to request . . . genetic information with respect to an employee or a family member
of the employee . . . .” 42 U.S.C. § 2000ff-1(b). Dollar General, acting through its agent, Middle
Creek Medical Center, is an employer. 42 U.S.C. § 2000e(b); 42 U.S.C. § 2000ff(2)(B)(i). Dollar
General’s job applicants are employees. 42 U.S.C. 2000ff(2)(A)(i); 42 U.S.C. § 2000e(f). And
“genetic information” includes “information about—(iii) the manifestation of a disease or disorder
in family members of such individual.” 42 U.S.C. § 2000ff(4)(A)(iii). Thus, Dollar General
requested genetic information from its employees in violation of GINA.
24

25

The EEOC also requests injunctive relief. (Doc. 1, p. 11). Dollar General argues that the Court
lacks jurisdiction over a claim for injunctive relief because the company voluntarily ceased the
alleged unlawful practice more than six years ago. (Doc. 126, p. 11 n.5).
Subsection (a) applies to “Employees covered by title VII of the Civil Rights Act of 1964.”
Subsection (b) applies to “Employees covered by Government Employee Rights Act of 1991.”
26

The powers, remedies, and procedures provided in section 1981a of this
title, including the limitations contained in subsection (b)(3) of such
section 1981a, shall be powers, remedies, and procedures this chapter
provides to the Commission, the Attorney General, or any person,
alleging such a practice (not an employment practice specifically
excluded from coverage under section 1981a(a)(1) of this title).
42 U.S.C. § 2000ff-6(a)(3). In turn, 42 U.S.C. § 1981a states, in pertinent part:
In an action brought by a complaining party under section 706 or 717
of the Civil Rights Act of 1964 against a respondent who engaged in
unlawful discrimination (not an employment practice that is unlawful
because of its disparate impact) prohibited under section 703, 704, or
717 of the Act, and provided that the complaining party cannot recover
under section 1981 of this title, the complaining party may recover
compensatory and punitive damages as allowed in subsection (b), in
addition to any relief authorized by section 706(g) of the Civil Rights
Act of 1964, from the respondent.
42 U.S.C. § 1981a(a)(1). According to the Supreme Court, this provision “limits
compensatory and punitive damages awards . . . to cases of ‘intentional
discrimination’—that is, cases that do not rely on the ‘disparate impact’ theory of
discrimination.” Kolstad v. American Dental Ass’n, 527 U.S. 526, 534 (1999) (citing
42 U.S.C. § 1981a(a)(1)).
Dollar General argues that neither the EEOC nor Mr. Jackson alleges
intentional discrimination and that, for purposes of § 1981a(a)(1), the Court should
treat the EEOC’s and Mr. Jackson’s GINA claim like a disparate impact claim.

Subsection (c) applies to “Employees covered by Congressional Accountability Act of 1995.”
Subsection (d) applies to “Employees covered by chapter 5 of Title 3.” Subsection (e) applies to
“Employees covered by section 717 of the Civil Rights Act of 1964.”

(Doc. 126, pp. 8-12). The EEOC’s complaint upends this argument. While citing
42 U.S.C. § 2000ff-1(b) as the basis for its GINA claim, (Doc.1, p. 9, ¶ 34), the
EEOC expressly alleges that “Defendant’s request for genetic information was not
inadvertent,” (Doc. 1, p. 10, ¶ 40), and that the unlawful employment practices that
the EEOC describes “were and are intentional,” (Doc. 1, p. 11, ¶ 44). Thus, as with
the ADA claims in this case, Dollar General’s attempt to characterize the claims as
unintentional discriminatory effect claims is not persuasive. The EEOC expressly
alleged intentional conduct to support an award of damages for Dollar General’s
GINA violation.
District courts appear to have assumed that damages are available for claims
brought under 42 U.S.C. § 2000ff-1(b). For example, in EEOC v. Grisham Farm
Products, Inc., the United States District Court for the Western District of Missouri
ordered the defendant to pay $10,000 “for the damages suffered that are a direct and
proximate result of its violations of the ADA, 42 U.S.C. § 12112(d) and GINA, 42
U.S.C. § 2000ff-1(b).” Grisham Farm Products, Inc., 191 F. Supp. 3d 994, 998
(W.D. Mo. 2016).27 Conversely, no court has held that damages are not available
under 42 U.S.C. § 2000ff-1(b).
27

See also Jackson v. Regal Beloit America, Inc., NO. 16-134-DLB-CJS, 2018 WL 3078760, at
*17 (E.D. Ky. June 21, 2018) (granting the plaintiff’s motion for partial summary judgment on her
GINA claim under subsection (b) and holding that “damages must be determined by a jury”); Lee
v. City of Moraine Fire Dep’t, No. 3:13-cv-222, 2015 WL 914440 (S.D. Ohio Mar. 3, 2015); Lowe
v. Atlas Logistics Group Retail Servs. (Atlanta), LLC, 102 F. Supp. 3d 1360 (N.D. Ga. 2015).

Admittedly, GINA’s statutory framework does not neatly map onto 42 U.S.C.
§ 1981a(a)(1)’s remedial scheme.

As discussed, the Supreme Court separates

§ 1981a(a)(1) into two types of claims: “intentional discrimination” claims for
which compensatory and punitive damages are available and “the disparate impact
theory of discrimination,” for which compensatory and punitive damages are not
available. Kolstad, 527 U.S. at 534 (internal quotation marks omitted). GINA
separates claims into two somewhat different categories: “[d]iscrimination based on
genetic information” and “[a]cquisition of genetic information.”

42 U.S.C.

§ 2000ff-1. As Dollar General notes, the first type of claim under each statute –
“intentional discrimination” under 42 U.S.C. § 1981a(a)(1) and “discrimination
based on genetic information” under 42 U.S.C. § 2000ff-1(a) – align neatly. Both
sections expressly address intentional discrimination.28 But the second type of claim

28

GINA subsection (a) states:
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire, or to discharge, any employee, or otherwise to
discriminate against any employee with respect to the compensation, terms,
conditions, or privileges of employment of the employee, because of genetic
information with respect to the employee; or
(2) to limit, segregate, or classify the employees of the employer in any way that
would deprive or tend to deprive any employee of employment opportunities or
otherwise adversely affect the status of the employee as an employee, because
of genetic information with respect to the employee.

42 U.S.C. § 2000ff-1(a).
discrimination.

By its terms, GINA subsection (a) applies only to intentional

under each statute – “the disparate impact theory of discrimination” under 42 U.S.C.
§ 1981a(a)(1) and “acquisition of genetic information” under 42 U.S.C. § 2000ff1(b) – are less compatible.
Importantly, though a claim under 42 U.S.C. § 2000ff-1(b) may not involve
intent to discriminate, a claim under 42 U.S.C. § 2000ff-1(b) does involve the
intentional collection of genetic information. Under 42 U.S.C. § 2000ff-1(b) an
employer may not “request, require, or purchase” certain information. To “request,
require, or purchase” necessarily involves intentional conduct, not benign conduct
that produces an unlawful result as in a disparate impact claim. In fact, § 2000ff1(b)(1) expressly excludes liability for inadvertent requests for family medical
history of an employee or family member of the employee. GINA explicitly deals
with unintentional conduct, not by limiting what remedies are available to a plaintiff,
but by excusing liability. Finally, and most importantly, any argument that a 42
U.S.C. § 2000ff-1(b) claim should be treated like a disparate impact is undercut by
the language of GINA itself, which states: “Notwithstanding any other provision of
this Act, ‘disparate impact’, as that term is used in section 2000e-2(k) of this title,
on the basis of genetic information does not establish a cause of action under this
Act.” 42 U.S.C. § 2000ff-7(a).
GINA’s legislative history also suggests that a plaintiff may recover
compensatory and punitive damages for claims brought under 42 U.S.C. § 2000ff-

1(b). When the bill originally was introduced in the House, the provision that would
eventually become 42 U.S.C. § 2000ff-1(b) was nearly identical to the final version:
Acquisition Of Genetic Information.—It shall be an unlawful
employment practice for an employer to request, require, or purchase
genetic information with respect to an employee or a family member of
the employee (or information about a request for the receipt of genetic
services by such employee or a family member of such employee)
except— . . . .
H.R. 493, 110th Cong. § 202(b) (2007). The only difference is the parenthetical,
which was removed from the bill in the House. H.R. 493, § 202(b) (as engrossed in
the House, Apr. 25, 2007).29 Similarly, the remedies and enforcement section in the
original bill is nearly identical to what would eventually become 42 U.S.C. § 2000ff6. H.R. 493, § 207. The damages subsection incorporated 42 U.S.C. § 1981a’s
remedial scheme. H.R. 493, § 207(a)(3).30
The House Committee on Education and Labor recognized that this bill would
allow an array of damages actions. H.R. REP. NO. 110-28 (2007) (Conf. Rep.).
Burton J. Fishman, on behalf of the Genetic Information Nondiscrimination in
Employment Coalition, testified before the Committee on Education and Labor.
H.R. REP. NO. 110-28, at 67-68. In his testimony, Mr. Fishman stated that “[w]hen

29

The original bill included five exceptions, including exception (b)(1) covering inadvertent
requests or requirements. H.R. 493, § 202(b)(1)-(5). Later, a sixth exception was added covering
DNA analysis for law enforcement purposes. H.R. 493, § 202(b)(6).
Later, the Senate added subsection (f): “Prohibition against retaliation.” H.R. 493, § 207(f) (as
engrossed in the Senate).
30

a company intentionally discriminates, remedies should be available,” but expressed
concern over the fact that this bill “resorts to jury trials with punitive and
compensatory damages for any violation, without distinction, while will necessarily
invite additional litigation.” H.R. REP. NO. 110-28, at 67-68. Those writing for the
minority in the committee report quoted Mr. Fishman, sharing his concern. H.R.
REP. NO. 110-28, at 67. Yet, the language of the bill was not changed to limit the
availability of compensatory and punitive damages. Thus, given the language and
legislative history of GINA, coupled with the Supreme Court’s interpretation of 42
U.S.C. § 1981a(a)(1), the Court finds that compensatory and punitive damages are
available for claims brought under 42 U.S.C. § 2000ff-1(b). In turn, the Court also
finds that the EEOC and Mr. Jackson have standing to bring their GINA claims, even
if their request for injunctive relief is moot, and the EEOC and Mr. Jackson have
alleged intentional conduct to support a damages claim.
Alternatively, Dollar General argues that the EEOC’s summary judgment
motion on its GINA claim “is premature because it depends upon the EEOC
establishing proof of damages,” (Doc. 126, p. 15), but the EEOC has moved for
partial summary judgment only with respect to a GINA violation, not damages,
(Doc. 107, p. 1). The Court does not need to determine damages to determine a
GINA violation. Thus, the Court grants the EEOC’s motion for partial summary
judgment on its GINA claim as to liability. Damages under GINA are for a jury to

decide. Jackson, NO. 16-134-DLB-CJS, 2018 WL 3078760, at *17. Additionally,
the Court grants summary judgment for Mr. Jackson on his GINA claim pursuant to
its power under FED. R. CIV. P. 56(f)(1).
CONCLUSION
For the reasons discussed above, the EEOC and Mr. Jackson have established
as a matter of law that Dollar General violated GINA. The Court denies Dollar
General’s motion for summary judgment on the EEOC’s and Mr. Jackson’s 42
U.S.C. §§ 12112(b)(6) and 12112(a) ADA claims. Finally, the Court regards the
EEOC’s and Mr. Jackson’s 42 U.S.C. § 12112(d)(3) ADA claim as a duplicate claim
that the Court will dismiss. By separate order, the Court will set the EEOC’s and
Mr. Jackson’s remaining ADA claims and their GINA claim, with respect to
damages, for trial.
DONE and ORDERED this July 26, 2022.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE