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Seventh Circuit: Disclosure of Ex-Worker's Migraines to Hiring Firms Not ADA Breach

Tuesday, November 27, 2012

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 condition.

Revealed Condition in Email.

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,” Messier wrote.

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 know.”

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).

Statute Reaches Only 'Medical' Inquiries.

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.

Case Law Does Not Help EEOC.

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 incapacitated.

“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 said.

“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 said.

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 said.

Paula R. Bruner of the EEOC, in Washington, represented the commission. Lawrence T. Lynch of Foley & Lardner, in Milwaukee, represented Thrivent.

By Kevin P. McGowan  


Full text of the court's opinion is available at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-928mmj.

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