Employment-Seventh Circuit Rules That The Medical Information The Employer Discovered Outside Of Any Medical Examination Or Inquiry Is Not Subject To The ADA’s Confidentiality Requirements

In Equal Employment Opportunity Commission v. Thrivent Financial for Lutherans, No. 11-2848 (7th Cir. 2012), the Equal Employment Opportunity Commission (the “EEOC”) had brought suit against Thrivent Financial for Lutherans (“Thrivent”), on behalf of Gary Messier (“Messier”), alleging a violation of the medical record confidentiality requirements of the Americans with Disabilities Act (the “ADA”).

In this case, Omni Resources, Inc. (“Omni”), a technology consulting agency, hired Messier to work as a temporary SAS programmer for Thrivent. When Messier later left Omni and Thrivent, Messier had a difficult time finding a new job and began to suspect that Thrivent was saying negative things about him to prospective employers who called for reference checks. The EEOC alleges that during these reference checks, Thrivent was revealing information about Messier’s migraine condition to prospective employers in violation of the ADA’s requirement that employee medical information obtained from “medical examinations and inquiries” must be “treated as a confidential medical record.” (See 42 U.S.C. § 12112(d)). The district court granted summary judgment to Thrivent, and the EEOC appealed.

The Seventh Circuit Court of Appeals (the “Court”) found that Thrivent learned of Messier’s migraine condition outside the context of a medical examination or inquiry. Specifically, Thrivent learned about the condition when Messier responded to an email from a supervisor asking why he was not at work-a general job inquiry, which, according to the Court (without-at a minimum- the employer’s prior knowledge of a medical condition), is not a medical inquiry for ADA purposes. Therefore, the confidentiality provisions of the ADA (in 42 U.S.C. § 12112(d)(3)) did not apply, and Thrivent had no duty to treat its knowledge of Messier’s migraine condition as a confidential medical record. As such, the Court affirmed the district court’s decision.