A company did not violate the Americans with Disabilities Act's medical
record confidentiality requirements by disclosing a former contract worker's
migraine condition to prospective employers because the company did not learn
about the worker's migraine condition through a medical inquiry, the U.S. Court
of Appeals for the Seventh Circuit affirmed Nov. 20
(EEOC v. Thrivent Financial for
Lutherans, 7th Cir., No. 11-2848, 11/20/12).
Affirming summary judgment for Thrivent Financial for Lutherans, the court
said the Equal Employment Opportunity Commission lacks an ADA claim on behalf of
Gary Messier, a former Thrivent contract worker who found out his former
supervisor was telling prospective employers about Messier's migraine
After Messier failed to report to work one day in 2006, the company asked him
to explain his absence. Messier replied by email that he had a migraine that
completely incapacitated him and he was unable even to call because of the pain.
Messier wrote that his sporadic migraines stemmed from a 1984 car accident, he
was completely bedridden when they occurred, and he had to ride them out “until
I can get them to a level where I can function.”
He added that “[a]t least I am functional most days, but when I have one of
the severity I had today do not expect any response from me or even a phone call
as the pain level is so severe that it puts most people in the hospital,”
He added that he expected to be back to work the next day and remained “fully
committed” to carrying out the remainder of his employment contract, but he quit
the job a month later after a disagreement unrelated to his migraines.
After he had trouble finding another job, Messier hired an online reference
checking agency to find out what Thrivent was telling Messier's potential
employers when they called to check his references. A representative of the
reference checking agency in January 2008 called Messier's former supervisor,
posing as a prospective employer of Messier. As Messier suspected, the company
told the caller that Messier “has medical conditions where he gets migraines. I
had no issue with that. But [Messier] would not call us; it was the letting us
Messier filed an EEOC charge, alleging Thrivent violated the ADA's
confidentiality provisions. EEOC sued on Messier's behalf, but a federal
district court in Wisconsin granted summary judgment
to Thrivent (120 PRA, 6/22/11).
On appeal, EEOC dropped its argument that the company's email to Messier
constituted a medical inquiry under the statute. Instead, EEOC argued the
relevant ADA provisions protect all employee medical information revealed in
response to “job-related” inquiries.
The Seventh Circuit said the “plain meaning” and statutory context of the
relevant ADA section show that “inquiries” refer only to medical inquiries.
EEOC's attempt to stretch the provision to protect a worker's medical
information gleaned from all “job-related” inquiries cannot be squared with the
ADA's language or purpose, the appeals court ruled.
The Seventh Circuit said it need not decide what judicial deference is owed
to EEOC's statutory interpretation because the relevant ADA provision has “a
plain meaning that cannot be ignored,” which limits the statutory term
“inquiries” to medical inquiries.
EEOC's argument that “inquiries” refers to all employer inquiries, and not
just employer medical inquiries, “rests almost entirely” on a single reference
to “job-related” inquiries found in the ADA provision at 42 U.S.C. §
12112(d)(4)(B), the court said. That part provides: “A covered entity may make
inquiries into the ability of an employee to perform job-related functions.”
But the Seventh Circuit said when the “job-related” language in that section
is read in the context of the entire section, “it is easy to see that the
'job-related' inquiries refer only to job-related medical inquiries.”
The sentence preceding the “job-related” language discusses permissible
employer-initiated medical activities, including voluntary employee medical
exams, health histories, and programs, the court pointed out.
EEOC argued case law interpreting Section 12112(d)(4)(B) supports its
argument for a broad reading of job-related inquiries, but the appeals court was
not persuaded. The appeals court noted that in the cited cases, the employers
initiated the interactions already knowing the employee was ill or physically
“Additional case law supports this notion that an employer must already know
that an employee is ill or physically incapacitated before initiating the
interaction for the interaction to be considered an inquiry,” the court
“As these cases illustrate, previous courts have required--at a minimum--that
the employer already know something was wrong with the employee before
initiating the interaction,” an element that was missing in this case, the court
The court rejected EEOC's argument that the statutory term “inquiries” refers
to all job-related inquiries and not just medical inquiries. Since EEOC conceded
the firm email to Messier was not a “medical” inquiry, Thrivent was not required
to treat Messier's response as a “confidential medical record,” the court
Paula R. Bruner of the EEOC, in Washington, represented the commission.
Lawrence T. Lynch of Foley & Lardner, in Milwaukee, represented
By Kevin P. McGowan
Full text of the court's opinion is available at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-928mmj.