EEOC v. Thrivent Financial for Lutherans, No. 11-2848 (7th Cir. Nov. 20, 2012)

By Paul Mollica

While the Americans with Disabilities Act protects medical information about employees disclosed to an employer as a result of “medical examinations and inquiries,” 42 U.S.C. § 12112(d), such protection is not infinitely elastic. The Seventh Circuit, affirming summary judgment in this ADA case, holds that the employer must “already kn[o]w something [i]s wrong with the employee before initiating the interaction in order for that interaction to constitute a 42 U.S.C. § 12112(d)(4)(B) inquiry.” Fortunately for disabled employees, such circumstances are usually within their control if they are willing to come straight with their bosses about their work-related needs at the beginning of the relationship.

EEOC v. Thrivent Financial for Lutherans, No. 11-2848 (7th Cir. Nov. 20, 2012): The employee in this case (named Gary Messier) periodically suffered disabling migraines, a fact that he – fatefully, for this case – failed to disclose to his employer at the outset of the relationship.

One day, four months into his employment, Messier failed to report to work or call in. His manager shot him an e-mail: “Gary, Give us a call, and give John a call. We need to know what is going on. John called here looking for you.” Only in response to this e-mail did the employee, for the first time, disclose his medical condition. Shortly, thereafter, Messier quit over differences with the company.

Messier then learned, by hiring a reference checking agency, that his former employer Thrivent was telling prospective employers that Messier “ha[d] medical conditions where he gets migraines. I had no issue with that. But he would not call us. It was the letting us know.” He filed an EEOC charge and the agency sued, claiming that the disclosure violated the employer’s confidentiality duty under 42 U.S.C. § 12112(d).

The Seventh Circuit affirms summary judgment. The panel holds, under what it terms the section’s “plain language,” that the duty under the ADA to maintain confidentiality over medical information as a result of “medical examinations and inquiries” is limited to health-related questions, not merely performance-related questions –

“[T]he [section’s] use of the inclusive conjunction ‘and’ in the title-instead of a limiting or contrasting conjunction such as ‘or’-suggests that the examinations and inquiries referred to in the title of section (d) are within the same class or type: they are both medical. At the very least, the use of the conjunction ‘and’ indicates that the adjective ‘medical’ modifies both ‘examinations’ and ‘inquiries.'”

Surveying the ADA structure and limited, prior case law under this section in other circuits, the panel concludes that for coverage under this section, at the very least, an employer must initiate the inquiry “with some preexisting knowledge that the employee was ill or physically incapacitated” (emphasis in original).

In this case, because Messier apparently never informed the employer of his migraines (the record indicates that the employer had not suffered such a debilitating headache in six years), the panel held that the employee’s volunteering of the medical information – in response to an inquiry about his absence from work – did not fall into the category of protected “medical examinations and inquiries.”

An employee with a disability may be best served then, after accepting employment, with informing the employer up-front about a disability that might cause a sudden absence from work. A dialog at this stage triggers the employer’s ADA duty to offer a reasonable accommodation (which may include intermittent leave) and, importantly as this case shows, to maintain the confidentiality of the employee’s information.