Employer's Revealing Former Employee's Migraine Problems in Reference Check Does Not Violate ADA

Randy T. Enochs

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Employment / Labor Attorney

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Gary Messier was hired by a technology consulting agency to work as a temporary programmer for defendant Thrivent. During the court of his employment with Thrivent, Messier missed work one day which prompted his supervisor, Thomas Brey,to email Messier to “inquire" about his absence. Late in the day, Messier responded that he had a severe migraine headache condition resulting from a major car accident in the 1980s. After Messier quit his position with the temp agency and Thrivent, he experienced difficulty finding new employment which prompted him to use a service that acts as a potential employer for purposes of obtaining reference checks to see if he was being disparaged by his former employers. These reference checks revealed that Thrivent was revealing information about Messier's migraine condition. Specifically, Thrivent said: "[Messier] has medical conditions where he gets migraines. I had no issue with that. But he would not call us. It was the letting us know." The EEOC found "reasonable cause" that discrimination occurred arguing that this reference from Thrivent violated the Americans with Disabilities Act's (ADA) requirement that employee medical information obtained from "medical examinations and inquiries" must be "treated as a confidential medical record." 42 U.S.C. sec 12112(d). Summary judgment was granted by the district court holding that Thrivent learned of Messier's migraine condition outside the context of a medical examination or inquiry. Therefore, the court held, the confidentiality provisions of 42 U.S.C. sec. 12112(d)(3) did not apply. The Court of Appeals for the Seventh Circuit agreed and held Thrivent had no duty to treat its knowledge of Messier's migraine condition as a confidential medical record. In making their argument, the EEOC first argued that Messier's email disclosure would be covered by 42 U.S.C. sec. 12112(d)(3)(B) if one or both of the following were true: (1) Thrivent learned about Messier's migraine condition in the course of conducting a medical inquiry, or (2) Thrivent learned about Messier's migraine condition in the course of conducting "inquiries into the ability of an employee to perform job-related functions" under 42 U.S.C. sec. 12112(d)(4)(B) The EEOC conceded (1) did not apply and focused on (2) and argued that "inquiries" refers to all job-related inquiries and urged the Court to adopt its liberal interpretation of 42 U.S.C. sec. 12112(d) because it is "consistent with clear congressional intent." However, this argument failed and the 7th Circuit held that 42 U.S.C. sec. 12112(d) has a "plain meaning" that cannot be ignored. The EEOC also pointed to precedent in other circuits but the 7th Circuit noted that in each case the EEOC cited, the employer already knew something was wrong with the employee before initiating interaction in order for that interaction to constitute a 42 U.S.C. sec. 12112(d)(4)(B) inquiry. Thrivent, prior to Messier's email, had no knowledge of Messier's migraine issues and, therefore, not a medical inquiry because, for all they knew, Messier's "absence was just as likely due to a non-medical condition as it was due to a medical condition." The case is _ EEOC v. Thrivent Financial for Lutherans_, No. 11-2848 (Nov. 20, 2012).

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