No. 11-2848 ______________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ______________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellant, v. THRIVENT FINANCIAL FOR LUTHERANS, Defendant/Appellee. ____________________________________________________ On Appeal from the United States District Court for the Eastern District of Wisconsin No. 2:10-cv-853 ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________________ P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507 (202) 663-4731 paula.bruner@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 C. District Court Decision . . . . . . . . . . . . . . . . . . . . . . . . . . .7 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 I. THE DISTRICT COURT FAILED TO RECOGNIZE THAT MEDICAL INFORMATION PROVIDED IN RESPONSE TO JOB-RELATED INQUIRIES IS COVERED BY THE ADA’S CONFIDENTIALITY PROVISION. . . . . . . . . . . . . . . . . . . 13 II. THRIVENT MADE A PERFORMANCE-RELATED INQUIRY THAT RESULTED IN MESSIER’S DISCLOSURE OF HIS MEDICAL CONDITION . . . . . . . . . . . . . . . . . . 15 A. Thrivent’s inquiry was performance-related. . . . . . . . . . . . . . . . . 15 B. Messier’s medical response was not a voluntary disclosure.. . . . . . . . . 22 C. Even if Messier’s disclosure was voluntary, it should be shielded from disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 III. AS A MATTER OF PUBLIC POLICY, THE DISTRICT COURT IMPROPERLY DETERMINED THAT THRIVENT WAS NOT REQUIRED TO HOLD CONFIDENTIAL ITS FORMER EMPLOYEE’S MEDICAL INFORMATION. . . . . . . . . . . . . . . . . . . . . .35 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 CIRCUIT RULE 30(d) STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 SHORT APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page(s) CASES Ballard v. Healthsouth Corp., 147 F.Supp.2d 529 (N.D.Tex. 2001) . . . . . . . . . . 30 Beck v. Univ. of Wisc. Bd. of Regents, 75 F.3d 1130 (7th Cir. 1996) . . . . . . . . 25 Bennett v. Dominguez, 196 Fed. Appx. 785 (11th Cir. 2006) . . . . . . . . . . . . 29 Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . . . . .28 Cash v. Smith, 231 F.3d 1301 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . 29 Chedwick v. UPMC, 2011 WL 1559792 (W.D. Pa. Apr. 21, 2011) . . . . . . . . . . . . 14 Chevron v. Natural Res. Def. Council, 467 U.S. 837 (1984) . . . . . . . . . . . 33, 35 Dellinger v. Science Applications Int’l, 649 F.3d 226 (4th Cir. 2011) . . . . . . . 31 Denius v. Dunlap, 209 F.3d 944 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . .34 Disabled in Action of Pa. v. Southeastern Pa. Transp. Auth., 635 F.3d 87 (3d Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Doe v. City of NY, 15 F.3d 264 (2d Cir.1994) . . . . . . . . . . . . . . . . . . . .32 Doe v. USPS, 317 F.3d 339 (D.C. Cir. 2003) . . . . . . . . . . . . . . . . . . passim EEOC v. CR England, Inc., 644 F.3d 1028 (10th Cir. 2011) . . . . . . . . 8, 29, 30, 34 EEOC v. Ford Motor Credit Co., 531 F.Supp.2d 930 (M.D. Tenn. 2008) . . . 9, 17, 30, 38 EEOC v. Sears, Roebuck & Co., 417 F.3d 789 (7th Cir. 2005) . . . . . . . . . . . . 25 EEOC v. Yellow Freight Sys. Inc., 253 F.3d 943 (7th Cir. 2001) . . . . . . . . . . .19 Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008) . . . . . . . . . . . . . . 28 Feldman v. Am. Mem. Life Ins. Co., 196 F.3d 783 (7th Cir. 1999) . . . . . . . . . . 19 Grimsley v. Marshalls of MA, Inc., 284 Fed.Appx. 604 (11th Cir. 2008) . . . . . . . 34 Healy Tibbitts Builders, Inc. v. Dir., Office of Workers’ Comp. Programs, 444 F.3d 1095 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . 32 Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998) . . . . . . . . . . 10 IMS Health Inc. v. Sorrell, 630 F.3d 263 (2d Cir. 2010) . . . . . . . . . . . . . . 31 Jackman Fin. Corp. v. Humana Ins. Co., 641 F.3d 860 (7th Cir. 2011) . . . . . . . . 10 Johnson v. Hix Wrecker Service, Inc., 651 F.3d 658 (7th Cir. 2011) . . . . . . . . .10 Karraker v. Rent-A-Center, Inc., 411 F.3d 831 (7th Cir. 2005) . . . . . . . . . . . 35 Kingston v. Ford Meter Box Co., 2009 WL 981333 (N.D Ind. April 10, 2009) . . . .22, 24 Lee v. City of Columbus, Ohio, 636 F.3d 245 (6th Cir. 2011) . . . . . . . . . . 31, 41 Marcatante v. City Of Chicago, IL, 657 F.3d 433 (7th Cir. 2011) . . . . . . . . . 10 Matson v. Bd. of Educ. of City Sch. Dist. of NY, 631 F.3d 57 (2d Cir. 2011) . . . . 32 McPherson v. O'Reilly Auto., Inc., 491 F.3d 726 (8th Cir. 2007) . . . . . . . . . 38 Minkus v. Metro. Sanitary Dist., 600 F.2d 80 (7th Cir. 1979) . . . . . . . . . . . .22 Mudra v. School City of Hammond, 2004 WL 3318761 (N.D. Ind. 2004) . . . . . . . . . 34 NLRB v. Certified Grocers of Ill., Inc., 806 F.2d 744 (7th Cir. 1986) . . . . . . . 32 Rodriguez v. Loctite Puerto Rico, Inc., 967 F.Supp. 653 (D.P.R. 1997) . . . . . . . 17 Rodriquez v. Compass Shipping Co., Ltd., 451 U.S. 596 (1981) . . . . . . . . . . . .29 Schaill v. Tippecanoe County Sch. Corp., 864 F.2d 1309 (7th Cir.1989) . . . . . . . 34 Sherrer v. Hamilton County Bd. of Health, 747 F.Supp.2d 924 (S.D. Ohio 2010) . .22, 24 Transport Workers Union of Am., Local 100, AFL-CIO v. New York City Transit Auth., 341 F.Supp.2d 432 (S.D.N.Y. 2004) . . . . . . . . . . . . . . . . . . . . . . . . 38 Tyndall v. Nat’l Educ. Ctrs., Inc., 31 F.3d 209 (4th Cir.1994) . . . . . . . . . . .18 United States v. Ressam, 553 U.S. 272 (2008) . . . . . . . . . . . . . . . . . . 17 Yoder v. Ingersoll-Rand Co., 172 F.3d 51 (6th Cir.1998) . . . . . . . . . . . . . . 29 STATUTES 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12101(a)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 31 42 U.S.C. § 12101(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 42 U.S.C. § 12101 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 42 U.S.C. § 12112(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 42 U.S.C. § 12112(b)(5)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 42 U.S.C. § 12112(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 42 U.S.C. § 12112(d)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . .36, 37 42 U.S.C. § 12112(d)(3)(B) . . . . . . . . . . . . . . . . . . . . . . .12, 14, 31, 39 42 U.S.C. § 12112(d)(3)(B)(i)-(iii) . . . . . . . . . . . . . . . . . . . . . . . . 38 42 U.S.C. § 12112(d)(3)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 39 42 U.S.C. § 12112(d)(4)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . .33, 36 42 U.S.C. § 12112(d)(4)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . .passim 42 U.S.C. § 12112(d)(4)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . .passim 42 U.S.C. § 12117(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12203(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Americans with Disabilities Act of 1990, P.L. 101-336, H.R. REP. NO. 101–485(II), 101st Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 303, 1990 WL 125563 (1990) . . . passim RULES AND REGULATIONS 29 C.F.R. § 1630.14(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 29 C.F.R. §1630.14(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, No. 915.002 (Mar. 25, 1997) . . . . . . . . . . . . . . . 27 EEOC Enforcement Guidance: Disability–Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, EEOC Notice 915.002 (July 26, 2000) . . . . . . . . . . . . . . . . . . . . . . . . 21 Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations Under the Americans with Disabilities Act of 1990 . . . . . . 21 Employment: Reasonable Accommodation, Americans with Disabilities Act Manual (BNA), BNA-ADAM 20:401, 20XX WL 4683597 . . . . . . . . . . . . . . . . . . . . . . 25 Facts About the Americans with Disabilities Act, http://www.eeoc.gov/eeoc/publications/fs-ada.cfm . . . . . . . . . . . . . . . . . .26 Question 14, Job Applicants and the [ADA], http://www.eeoc.gov/facts/jobapplicant.html . . . . . . . . . . . . . . . . . . . . 33 Question 42, Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Questions and Answers: Enforcement Guidance on Disability–Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, EEOC Notice 915.002, 2000 WL 33407183 (EEOC, July 26, 2000) . . . 39 STATEMENT OF JURISDICTION This is an appeal from a final judgment entered by the district court. The Equal Employment Opportunity Commission (“EEOC” or “Commission”) brought this action, alleging that Thrivent Financial for Lutherans (“Thrivent”) violated the confidentiality provision of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(d)(4)(C), when it disclosed a former employee’s medical condition to his prospective employers. R.1, Complaint at 1. The district court’s jurisdiction was based on 42 U.S.C. § 12117(a) and 28 U.S.C. § 1331. The EEOC and Thrivent filed cross- motions for summary judgment in the district court. R.11 & 14. On June 15, 2011, the district court granted Thrivent’s motion for summary judgment, denied the EEOC’s partial motion for summary judgment, and dismissed the case. R.25 & 26. The EEOC filed a timely notice of appeal on August 11, 2011. R.27. STATEMENT OF THE ISSUES 1. Whether the district court applied incorrect legal standards to the EEOC’s argument that Thrivent made a job performance-related inquiry when it ruled that the ADA’s confidentiality provision does not apply to job performance-related inquiries and that such inquiries must be “likely to elicit information regarding a disability.” 2. Whether the district court committed legal error when it decided that the former employee’s medical response was voluntary and not entitled to confidentiality. 3. Whether, as a matter of public policy, the district court improperly determined that Thrivent was not required to hold confidential its former employee’s medical information. STATEMENT OF THE CASE A. Course of Proceedings On September 30, 2010, the EEOC filed this action under the ADA, 42 U.S.C. § 12101 et seq., seeking relief for charging party Gary Messier. In its complaint, the Commission alleged that Thrivent disclosed Messier’s medical condition of severe migraine headaches to prospective employers in violation of the ADA’s confidentiality provisions. R.1, Complaint at 1, 3. At the request of the district court, the parties filed cross-motions for summary judgment under the district court’s “Fast Track Summary Judgment Procedure.” R.10, Rule 16 Telephone Scheduling Conference at 2. On March 1, 2011, Thrivent filed its summary judgment motion and brief, arguing that it was entitled to summary judgment on the EEOC’s ADA claim because Messier’s voluntary disclosure was not a response to a “medical inquiry,” R.13 at 5-9. Thrivent further argued that because Messier voluntarily disclosed his medical condition, Thrivent’s subsequent disclosure of Messier’s medical information did not violate the confidentiality provision. Id. at 10-15. That same day, the EEOC filed a motion and brief for partial summary judgment, primarily arguing that it should prevail on summary judgment because Thrivent should have kept confidential Messier’s medical information because it was obtained pursuant to Thrivent’s job performance-related inquiry. R.15 at 4-7. The Commission also argued that Messier’s disclosure was not voluntary but rather “in response to the inquiry by Thrivent and its agent into the reason for his absence,” id. at 7, and therefore it was protected by the confidentiality provisions. The Commission reiterated these arguments in its opposition to Thrivent’s motion for summary judgment. On June 15, 2011, the district court decided that Thrivent’s disclosure did not violate the ADA because Messier had not provided his medical information in response to a medical inquiry, and because Messier‘s medical disclosure was voluntary. R.25, Opinion (“Op.”) at 6-10. Accordingly, the district court entered judgment granting Thrivent’s summary judgment motion and denying the EEOC’s partial summary judgment motion. R.26. The EEOC appealed. R.27. B. Statement of the Facts Thrivent Financial for Lutherans is a faith-based, not-for-profit financial services membership organization that manages $67 billion in assets and sells life insurance and other financial products and services. In July 2006, Omni Resources, Inc. (“Omni”), a technology consulting agency, hired Messier to work as a temporary SAS programmer for Thrivent pursuant to a consulting services agreement between Thrivent and Omni. R.25, Op. at 1-2. Thomas Brey was Messier’s account manager at Omni, and John Schreiner was the manager of the Thrivent department to which Messier was assigned. Id. at 2. On November 1, 2006, Messier did not report to work at Thrivent, and he did not inform anyone that he would not be at work. R.25, Op. at 2. When Schreiner noticed that Messier had not reported to work, Schreiner called Brey at Omni looking for Messier. Brey then sent Messier the following email: Gary, Give us a call, and give John a call. We need to know what’s going on. John called here looking for you. Id. at 2. At 4:53 p.m., Messier sent Brey an email response, on which he copied Schriener, that said: Tom/John I’ve been in bed all day with a severe migraine. Have not had one this severe in over six years. Three doses of Imitrex today and I am finally able to function. Sorry for the very late reply but when I get migraines of this severity I am bed ridden until I can get them to a level so I can function. People have many medical conditions that are not obvious on the surface. They struggle with them every-day and try to get thru life one day at a time. I’ve had these migraines since a major car accident in 1984. Because this was a head on at 50 miles an hour I am very lucky to have lived thru it. But these migraines are an end result of the head trauma that I experienced that day. I have been waiting for the medical field to come up with a solution ever since. I am attending a few sessions, this coming Saturday, in a seminar sponsored by Theda-Care on Brain & Spine conditions. Hopefully this may provide the information that I have been searching for to help alleviate this situation. The medical field has come a long way since 1984. I am currently reaping some of the benefits to help control this problem with the medication regiment [sic] that I am currently on. At 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. I have been dealing with this pain for a long time and I have found the best way to deal with it is to let it run its course. Probably a lot more than either of you wanted to know but I want to be totally honest with both of you. If all goes well I will be in tomorrow on schedule. I hope this answers your concerns and that I am fully committed to Thrivent and Omni thru the remainder of my contract. Gary Id. at 2-3. Later that evening, Brey e-mailed Messier, saying: Gary, Get better. That is the most important thing. John called out of concern for your well being because you are very good about notifying us when you are going to be out. Get better and we can go from there. If there is anything that I or Omni can do please let me know. We are here for you. Tom Brey Account Manager R.12-1, Ex. A at 4; see also R.25, Op. at 3. On December 4, 2006, Messier quit working at Thrivent, R.25, Op. at 3. Thereafter, he began to seek employment. Id.; R.12, Stipulated Findings of Fact (“Stipulated Facts”) at 3. Because three prospective employers lost interest after they conducted reference checks, Messier suspected that Thrivent, which he had listed as a reference, was giving him a negative reference and disclosing his medical condition. Id. Based on these suspicions, Messier hired Reference Matters, Inc., an online reference- checking agency. Id. On or about January 10, 2008, a Reference Matters representative called Schreiner at Thrivent and Schreiner disclosed information about Messier’s migraine condition to this representative. Id. Specifically, in response to the checker’s questionnaire, Schriener provided the following pertinent information: • “We [Messier and Thrivent] ran into a very strong disagreement on expectations and he walked out on us.” • When asked how he would rate Messier’s attendance, Schriener selected the box for “below average.” • When asked “[w]as this individual always on time?,” Schriener again selected the “below average” box. • When asked “[w]ere you satisfied with his work performance?” Schriener said: “No, that was part of the reason he left. It was due to our expectations on what he should produce.” • Significantly, Schriener added: “He has strong technical skills. From that standpoint, there were no issues. It was his ability to get the work done. He 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." R.12-2 at 2 (emphasis added). In September 2010, the EEOC filed this ADA action, alleging that Thrivent violated the confidentiality provisions of the ADA when it disclosed Messier’s medical information to prospective employers, causing “a severe and negative impact on his ability to obtain employment from those employers.” R.1, Complaint at 1. On March 1, 2011, Thrivent and the EEOC filed stipulated findings of fact. R.12, Stipulated Facts. That same day, the parties also filed cross-motions for summary judgment pursuant to the district court’s fast track procedures. Specifically, Thrivent filed a summary judgment motion, R.11, principally arguing that it had not breached the ADA’s confidentiality provision because it obtained Messier’s medical information as a result of a voluntary disclosure, and not pursuant to a medical inquiry. R.13, Thrivent Summary Judgment (SJ) Br. at 2. The EEOC filed a motion for partial summary judgment, R.14, primarily arguing that Messier’s medical disclosure was not voluntary because it was provided in response to Thrivent’s job performance-related inquiry into his absence. R.15, EEOC PSJ Mem. at 7. Similarly, in its opposition to Thrivent’s motion for summary judgment, the Commission reiterated that “Messier disclosed his migraines involuntarily in response to a job-related inquiry by Thrivent, and then Thrivent violated the ADA when it revealed that information to Messier’s prospective employers.” R.17, EEOC SJ Opp. at 2. C. District Court Decision At the outset, the district court noted that the ADA prohibits disability-related inquiries unless such inquiry is job-related and consistent with business necessity. R.25, Op. at 4. The court further noted that employers may make inquiries into an employee’s ability to do a job and that medical information obtained from such inquiries is subject to the confidentiality provisions of the ADA. Id. However, the court observed that, although this Court has not addressed the issue, most courts had held that the confidentiality provisions do not protect medical information that is voluntarily disclosed. Id. (citing EEOC v. CR England, Inc., 644 F.3d 1028 (10th Cir. 2011)). Consequently, the court concluded that “[u]nder its plain meaning, section 102(d)(4) protects only that information which an employer acquires through a medical inquiry or a medical examination.” Id. at 5 (emphasis added). The court elucidated that the ADA “focuses on the employer’s active role in the disclosure and thus does not protect any disclosure of medical information to an employer no matter how it arises; only those disclosures which the employer obtains through a ‘medical examination’ of the employee or an inquiry ‘as to whether such employee is an individual with a disability or as to the nature or severity of disability’ are protected.” R.25, Op. at 5. Consequently, the court opined that “an employee’s disclosure is voluntary if the disclosure is not preceded by a request or demand for medical information by the employer.” Id. at 8. Treating the Commission’s argument that Thrivent made a job performance- related inquiry as the EEOC’s attempt to “advance[] an overly broad definition of a medical inquiry,” id., the court ruled that the inquiry was not medical in nature. Id. The court explained that an employee could give a number of reasons for why he missed work and how unreasonable it would be to assume that an employer checking on an absent employee “has the intent to request or acquire medical information.” Id. The court also rejected the Commission’s reliance on EEOC v. Ford Motor Credit Co., 531 F.Supp.2d 930 (M.D. Tenn. 2008), for the proposition that “’whether or not an employee can show up for work is quite clearly a job-related question.’” R.25, Op. at 8 (emphasis in original). The court noted that in Ford Motor, the employee made a medical disclosure as a precondition to obtaining leave pursuant to the Family & Medical Leave Act (“FMLA”). Id. at 9. The court observed that there was no evidence Messier sought FMLA leave. The court added that in this case, “Schreiner and Brey had no reason to be concerned about Messier’s physical ability to appear at work – he seems to have done so satisfactorily for the length of his employment up to that point. Rather, as would be expected from any employer, they were seeking an explanation for Messier’s un-excused absence from work on this particular day.” Id. The court decided that since Thrivent did not specifically request or require Messier to disclose any information about his medical condition, or ask him anything that was particularly likely to elicit specific medical information, Messier’s disclosure was voluntary and not in response to a medical inquiry. Id. In sum, the court stated that “no reasonable finder of fact could find that Messier’s disclosure was made in response to a medical inquiry by either Schriener or Brey.” Id. at 10. Accordingly, it ruled that Thrivent’s disclosure of Messier’s medical information was not subject to the ADA confidentiality requirements in section 102(d)(4). Id. STANDARD OF REVIEW The court of appeals conducts a de novo review of a district court’s decision involving cross-motions for summary judgment. Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998); Jackman Fin. Corp. v. Humana Ins. Co., 641 F.3d 860, 864 (7th Cir. 2011) (reviewing de novo a district court's grant of summary judgment and denial of a cross-motion for summary judgment). “With cross-motions, [the court’s] review of the record requires that [it] construe all inferences in favor of the party against whom the motion under consideration is made.” Hendricks-Robinson, 154 F.3d at 692. However, “[c]ross-motions for summary judgment do not waive the right to a trial; rather, [this Court] treat[s] the motions separately in determining whether judgment should be entered in accordance with Rule 56.” Marcatante v. City Of Chicago, IL, 657 F.3d 433, 438-39 (7th Cir. 2011); Johnson v. Hix Wrecker Service, Inc., 651 F.3d 658, 664 (7th Cir. 2011) (affirming denial of plaintiff’s cross-motion for summary judgment on exemption claim but reversing grant of summary judgment for defendant and remanding case because defendant’s exemption evidence, while insufficient to support summary judgment in its favor, was sufficient to raise general issues of material fact). SUMMARY OF ARGUMENT In this case, Gary Messier, a former employee, provided medical information in response to an employer inquiry about his absence from work. The text of the ADA, its statutory intent, and the facts support a finding that the employer inquiry constituted a job performance-related inquiry under the ADA, thus protecting Messier’s medical information from disclosure by his employer. The job performance-related inquiry is a separate and appropriate basis for invoking the confidentiality provision of the ADA independent of the medical inquiry provision. See 42 U.S.C. § 12112(d)(4)(C) (referencing 42 U.S.C. § 12112(d)(4)(B)). Hence, the district court’s ruling that Thrivent did not make a medical inquiry does not preclude a finding that Messier’s medical information is still entitled to confidentiality because it was disclosed in response to a job performance-related inquiry. The district court committed legal error in deciding that the ADA’s confidentiality provision does not apply to Thrivent’s disclosure of Messier’s medical condition because (1) it failed to recognize that job performance-related inquiries are covered by the ADA’s confidentiality provision; (2) it did not properly apply relevant legal standards to the job-related performance inquiry claim; and (3) its ruling undermines the goals and intent of the ADA to preserve medical confidentiality. Accordingly, the Commission seeks a vacatur of the district court’s judgment denying the Commission’s partial summary judgment motion, and either entry of partial summary judgment for the EEOC on the job performance-related question or remand to the jury for further proceedings. ARGUMENT Under the ADA, information “regarding the medical condition or history of any employee” 42 U.S.C. § 12112(d)(4)(C), is to be “treated as a confidential medical record” by the employer. 42 U.S.C. § 12112(d)(3)(B). The ADA explicitly protects an employee’s medical information when it is obtained from an employer’s inquiry “into the ability of an employee to perform job-related functions.” 42 U.S.C. § 12112(d)(4)(B) (referenced in 42 U.S.C. § 12112(d)(4)(C)). This is because performance related inquiries may solicit medical information which an employee may not want publicized because of the risk of stigma or discrimination. See Americans with Disabilities Act of 1990, P.L. 101-336, H.R. REP. NO. 101–485(II), 101st Cong., 2nd Sess. 1990 (ADA History), 1990 U.S.C.C.A.N. 303, 358, 1990 WL 125563 at *75 (1990) (“As was made abundantly clear before the Committee, being identified as disabled often carries both blatant and subtle stigma.”). For the purposes of this appeal, the Commission contests the district court’s rejection of its claim that Thrivent made a job performance-related inquiry, and seeks vacatur of the court’s denial of the Commission’s partial summary judgment motion and entry of partial summary judgment on the job performance-related claim. More specifically, the district court committed legal error when it (1) failed to recognize that medical information obtained pursuant to a job performance-related inquiry is protected by the confidentiality provisions of section 102(d)(4); (2) failed to analyze the Commission’s job performance-related inquiry under the appropriate legal standards; and (3) improperly ignored the ADA’s intent and purpose when it decided that Thrivent’s disclosure of its former employee’s medical information did not violate the ADA. I. THE DISTRICT COURT FAILED TO RECOGNIZE THAT MEDICAL INFORMATION PROVIDED IN RESPONSE TO JOB-RELATED INQUIRIES IS COVERED BY THE ADA’S CONFIDENTIALITY PROVISION. As a general matter, this Court should vacate the district court’s denial of the EEOC’s motion for partial summary judgment because the district court erred in ruling that the confidentiality provision does not apply to inquiries about one’s ability to perform job-related functions. Indeed, the district court stated that, “only those [medical or disability] disclosures which the employer obtains through a ‘medical examination’ of the employee or an inquiry ‘as to whether such employee is an individual with a disability or as to the nature or severity of the disability’ are protected.” R.25, Op. at 5. The district court’s narrow reading of the ADA confidentiality provision, and its disregard of a separate type of inquiry which can lead to the production of confidential information, conflicts with the plain language of the statute. Under the ADA, subparagraph (4)(B) states: “A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related functions.” 42 U.S.C. § 12112(d)(4)(B) (emphasis added). “Information obtained under subparagraph (4)(B) regarding the medical condition or history of any employee are [sic] subject to the requirements of subparagraph (B) and (C) of paragraph (3).” 42 U.S.C. § 12112(d)(4)(C). Because a performance-related inquiry is mentioned in subparagraph (4)(B), paragraph (3) requires an employer to treat “as a confidential medical record” any “information obtained regarding the medical condition or history” of the employee in response to that query. 42 U.S.C. § 12112(d)(3)(B). Therefore, the plain language of the statute dictates that the confidentiality provision applies to medical information supplied in response to inquiries into the ability of an employee to perform job-related functions. See Chedwick v. UPMC, 2011 WL 1559792, at *13 (W.D. Pa. Apr. 21, 2011) (“Like medical information obtained during the course of an ‘[e]mployment entrance examination,’ information ‘regarding the medical condition or history of any employee’ obtained by means of a ‘voluntary medical examination’ or an inquiry as to his or her ‘ability to perform job-related functions’ may be ‘used only in accordance with’ Title I. 42 U.S.C. § 12112(d)(3)(C), (4)(B)-(C).”). Notwithstanding the plain language of the confidentiality provision, the district court erroneously ruled that “section 102(d)(4) protects only that information which an employer acquires through a medical inquiry or a medical examination.” R.25, Op. at 5. The court’s legal error in failing to recognize that a job performance-related inquiry provides an independent basis for confidentiality of the medical information obtained appears to have influenced and prejudiced its analysis of the Commission’s motion. Such error in the court’s analysis was evidenced by its belief that the EEOC’s argument that the inquiry was job performance-related was merely an attempt “[t]o advance an overly broad definition of a medical inquiry.” Id. at 8. Therefore, this Court should vacate the denial of the EEOC’s motion for partial summary judgment and, at minimum, remand the case for further proceedings. II. THRIVENT MADE A PERFORMANCE-RELATED INQUIRY THAT RESULTED IN MESSIER’S DISCLOSURE OF HIS MEDICAL CONDITION A. Thrivent’s Inquiry was Performance-Related. In the district court, the Commission contended that Thrivent made a job performance-related inquiry, and thus Thrivent should have kept confidential Messier’s medical response. R.15, EEOC PSJ Mem. at 7; R.17, EEOC SJ Opp. at 2. According to stipulated facts, Thrivent manager John Schreiner, Messier’s onsite supervisor, contacted Omni manager Tom Brey inquiring about Messier’s whereabouts. R.12, Stipulated Facts at 2. Brey in turn told Messier via email that he and Schriener needed to know “what’s going on” because Messier was not at work and had not called in. R.12-1, Ex. A-Brey’s Email at 3. Moreover, Messier understood that the inquiry was performance-related because he offered the assurance that he would “be in tomorrow on schedule.” R.25, Op. at 2. He further expressed “hope” that his response “answers your concerns” because he was “fully committed to Thrivent and Omni through the remainder of my contract.” Id. at 3. If the protections of the ADA are to be given full effect, a reasonable factfinder could consider the request to know “what’s going on” to be an inquiry about Messier’s “ability . . . to perform job-related functions” under section 102(d)(4)(B), such that Messier’s answer disclosing his medical condition constitutes protected confidential information. Although neither the ADA nor its regulations explicitly define a job or performance-related inquiry, the legislative history does suggest some relevant parameters. In legislative history, Congress stated that “[w]hen a need arises to question the continued ability of a person to do the job, the employer may make inquiries[.]” ADA History, 1990 U.S.C.C.A.N. 303, 357, 1990 WL 125563, at 75. As one Supreme Court justice has said in discussing the connection between statutory language and intent: “No more here than elsewhere in life can words alone explain every nuance of their intended application. Context matters. And if judges are to give meaningful effect to the intent of the enacting legislature, they must interpret statutory text with reference to the statute's purpose and its history.” United States v. Ressam, 553 U.S. 272, 283 (2008) (Breyer, J., dissenting). The broad standard described in the legislative history of the ADA encompasses the circumstances of this case because it suggests that an unexplained absence may present a “need” to question an absent employee about his ability to do his job. In this case, when Thrivent noticed Messier’s absence, it immediately made an inquiry about his absence since he had not been previously excused and had not called in. To the extent that legislative history would consider such an inquiry a probe into whether an employee can perform his job, the inquiry at issue is certainly a job performance- related one. Although there are few cases addressing job performance-related inquiries under the ADA, the reasoning and facts of those cases support the conclusion that Thrivent’s inquiry related to Messier’s ability to perform his job. For example in EEOC v. Ford Motor Credit Co., 531 F.Supp.2d 930 (M.D. Tenn. 2008), the district court stated that “whether or not an employee can show up for work is quite clearly a job-related question.” Id. at 939; cf. Rodriguez v. Loctite Puerto Rico, Inc., 967 F.Supp. 653, 661 (D.P.R. 1997) (“[A] basic function of any full time job is showing up for work.”). Similarly, in Doe v. USPS, 317 F.3d 339 (D.C. Cir. 2003), in which defendant argued that “the Postal Service asked for medical certification to ascertain why Doe was absent from work, not to determine whether he was able to perform his job,” id. at 345, the appellate court reasoned that “[w]hatever the Postal Service's motive in seeking the information, . . . it was trying to determine whether Doe was ‘unable to perform the functions of [his] position.’” Id. The Doe court thus concluded that the employee’s medical response was entitled to confidentiality under the ADA. Id. (“Section 12112(d)'s plain language requires the Postal Service to treat Doe's response to that inquiry as confidential.”). These rulings indicate that, as a practical matter, an inquiry about an employee’s absence from work is sufficiently linked to employment and the ability to perform one’s duties to support the conclusion that Thrivent’s inquiry is a performance-related inquiry. See, e.g., Tyndall v. Nat'l Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th Cir.1994) ("Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise."). Moreover, such a reasonable interpretation of the phrase “inquiries into an employee’s ability to perform job-related functions,” 42 U.S.C. § 12112(d)(4)(B), would make more effective the ADA’s prohibition against disclosing confidential medical information and be consistent with Congress’ goal that persons with disabilities experience “equality of opportunity, full participation, independent living, and economic self-sufficiency. . .[.]” ADA, Findings and Purpose, 42 U.S.C. § 12101(a)(7). See also Disabled in Action of Pa. v. Southeastern Pa. Transp. Auth., 635 F.3d 87, 94 (3d Cir. 2011) (“the ADA is a remedial statute . . .; it must be construed with all the liberality necessary to achieve [its] purposes”); Feldman v. Am. Mem. Life Ins. Co., 196 F.3d 783, 790 (7th Cir. 1999) (“the ADA serves a remedial purpose”). Employees with medical conditions would be entitled to privacy and confidentiality if an employer’s inquiry about their absences evoked a medical response and the employees would not be at risk of stigma or discrimination. Applying the considerations here, a jury certainly could find that Thrivent asked a job performance-related question. As the district court acknowledged, Thrivent was “seeking an explanation for Messier’s un-excused absence from work on this particular day.” R.25, Op. at 9. But, as was the case in Doe, an inquiry regarding an employee’s absence is in effect an inquiry whether an employee will perform his or her job. See EEOC v. Yellow Freight Sys. Inc., 253 F.3d 943, 949 (7th Cir. 2001) (en banc) (“if one is not present, he is usually unable to perform his job”). Hence, on these facts, a jury could conclude that the inquiry focused on whether Messier was able to perform his job functions that day or in the future. The district court, however, rejected the Commission’s job performance-related argument. In its view, the facts of Doe and Ford Motor were dissimilar to the instant case because the employees in those cases sought FMLA leave and the leave form solicited medical information. R.25, Op. at 6-9. Hence, the court concluded that Thrivent did not make a medical inquiry. Id. at 10. In disposing of the Commission’s claim on this ground, the district court failed to consider fully the Commission’s claim and the legal authority it cited in support. Specifically, the court failed to recognize that EEOC cited Doe and Ford Motor in support of its argument that Thrivent made a job performance-related inquiry under section 102(d)(4)(B), R.15, EEOC PSJ Mem. at 6-7; R.17, EEOC SJ Opp. at 2, 6-10; R.22, EEOC PSJ Reply at 2-3 & n.1, which was a theory for liability advanced independent of the Commission’s argument that Thrivent made a medical inquiry under section 102(d)(4)(A). R.15, EEOC PSJ Mem. at 6-7; R.17, EEOC SJ Opp. at 11. Further, the district court gave no credence to Doe’s analysis that the inquiry in that case was considered job performance-related, and not medical. Had the district court properly read and applied Doe’s ruling that “[w]hatever the . . . motive in seeking the information [about Doe’s absence], . . . it was trying to determine whether Doe was ’unable to perform the functions of [his] position,’” Doe, 317 F.3d at 345, to Thrivent’s actions, the district court would not have summarily dismissed the EEOC’s claim. Moreover, the district court did not apply the appropriate legal standards to its assessment of whether Thrivent made a job performance-related inquiry. After noting that Schriener and Brey had no reason to be concerned about Messier’s physical ability to appear at work, and concluding that they were only seeking an explanation for Messier’s un-excused absence, the court stated: “[t]he EEOC guidelines, . . . prohibit questions that are ‘likely to elicit information regarding a disability,’” and that “EEOC provides no reason to believe that Brey’s email was more likely to elicit information about a disability or medical condition than information about transportation problems, a family emergency, or any other situation preventing him from being at work.” R.25, Op. at 9. The district court’s analysis reflects a fundamental misunderstanding about the legal standards governing performance-related inquiries. Nothing in the ADA’s language, legislative history, regulations, or guidance supports the court’s conclusion that job performance-related inquiries are defined as questions that are “likely to elicit” disability-related information. To the contrary, the Commission guidance mentions the “likely to elicit” language only in the context of medical inquiries. See EEOC Enforcement Guidance: Disability–Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (Disability-Related Inquiries), EEOC Notice 915.002 at 7 & n.2 (July 26, 2000) (“[a] ‘disability-related inquiry’ is a question (or series of questions) that is likely to elicit information about a disability[,]”); Enforcement Guidance: Preemployment Disability- Related Questions and Medical Examinations Under the Americans with Disabilities Act of 1990 (Preemployment Questions) at 18 (Oct. 10,1995) (medical or disability- related inquiries are “questions that are likely to elicit information about a disability”). Thus, whether the question was likely or more likely to elicit disability-related information is not material to the determination of whether Thrivent made a job performance-related inquiry. Given the factual circumstances and governing legal standards, the district court should have either granted summary judgment for the EEOC as a matter of law, or alternatively permitted a jury to decide whether Thrivent’s inquiry into Messier’s absence was performance-related. See, e.g, Minkus v. Metro. Sanitary Dist., 600 F.2d 80, 81 (7th Cir. 1979) (reversing entry of summary judgment in case involving cross-motions based on stipulated facts, and holding that “[a]lthough the parties filed a stipulation of facts, we believe that reasonable men might differ about the significance of the agreed- upon facts”). B. Messier’s medical response was not a voluntary disclosure. In rejecting the EEOC’s argument that Messier’s medical information was entitled to confidentiality, the district court turned to Sherrer v. Hamilton County Bd. of Health, 747 F.Supp.2d 924 (S.D. Ohio 2010) and Kingston v. Ford Meter Box Co., 2009 WL 981333 (N.D Ind. April 10, 2009). R.25, Op. at 5-8. Relying on those courts’ rulings that the medical disclosures were voluntary because they were not “preceded by any request or demand for medical information by the employer,” id. at 8, the district court here decided that Messier’s medical disclosure also was voluntary and therefore not entitled to confidentiality because neither Brey nor Schriener specifically requested or required Messier to disclose any information about a medical condition or asked him anything that was likely to elicit specific information about a medical condition. Id. at 9-10. The district court’s reliance on Sherrer and Kingston is misplaced because Messier did not voluntarily disclose his medical information. As a factual matter, Messier’s disclosure was made in response to a demand for information. His employer did not ask an open-ended question, but stated a “need to know” what was going on the day he failed to show up at work or to call in to explain his absence. R.25, Op. at 2. The answer to that question was not voluntary in the same way that a spontaneous disclosure of information would be, and the court’s reliance on cases addressing the latter scenario undermine its conclusion. Moreover, a job performance-related inquiry does not require that the “request or demand” for information to be medical in nature. However, if medical information is provided in response to that employer inquiry, the medical information is protected. See Doe, 317 F.3d at 344 (holding that the “inquiries” provision of section 102(d)(4)(B) includes information the employee provides to the employer at the employer's request). Thus, Messier’s involuntary disclosure should have been held confidential. In any case, Sherrer and Kingston are out-of-circuit district court decisions which were wrongly decided because they are inconsistent with the plain language of the statute and contrary to the general purposes and protections of the ADA. The holding in Kingston also conflicts with the decisions of this Court. As with any employment discrimination case, context matters. In Sherrer, the employee had medical appointments on two consecutive work days. After Sherrer returned from her second doctor’s appointment, about which her supervisor knew, and while she was in the process of amending her leave slip, her supervisor asked her, “Is everything okay?” 747 F.Supp.2d at 927. In response, Sherrer shared her medical information. Had the district court correctly analyzed the case under, for example Doe, which held that the “inquiries” provision of section 102(d)(4)(B) includes information the employee provides to the employer at the employer's request, Doe, 317 F.3d at 344, the supervisor’s “inquiry” would have been covered by section 102(d)(4)(B), and the employee’s medical information would have been entitled to confidentiality. Likewise, in Kingston, the employee disclosed his medical condition to his supervisor and plant nurse in an attempt to obtain a reasonable accommodation. Specifically, when Kingston’s supervisor told him that he needed to work on the plant floor more, Kingston revealed that he had a breathing disorder that caused fatigue and shortness of breath, and thus limited his ability to perform physical activities. 2009 WL 981333, at *2. In that same conversation, he explained the need for a reasonable accommodation and asked the supervisor to keep his medical condition confidential. Id. Given the ADA’s mission to enable persons with disabilities to work, the Kingston district court’s decision to consider Kingston’s medical information as unprotected by the confidentiality provision because it was voluntarily disclosed vitiates the statute’s purpose. The ADA requires that the employer and the employee engage in an interactive process to determine a reasonable accommodation for an employee's disability. 42 U.S.C. § 12112(b)(5)(A); EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir.2005). Implicit in this interactive process is that the employee reveals his medical condition or symptoms to obtain the accommodation. Sears, 417 F.3d at 803 (“The ADA imposes on an employee the ‘initial duty to inform the employer of a disability.’”) (quoting Beck v. Univ. of Wisc. Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir. 1996)). The duty to disclose the medical condition is “dictated by common sense lest a disabled employee keep his disability a secret and sue later for failure to accommodate.” Beck, 75 F.3d at 1134. Further, the ADA contemplates such disclosure because the employer is only liable if the employer fails to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(A). Lastly, EEOC guidance forbids disclosure of medical information obtained during the reasonable accommodation process. See generally Question 42, Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002); see also Employment: Reasonable Accommodation, Americans with Disabilities Act Manual (BNA), BNA-ADAM 20:401, 20XX WL 4683597 (“employers must protect the confidentiality of all medical information collected during the process of substantiating a worker's need for accommodation, according to EEOC ' s guidance on reasonable accommodation”); Facts About the Americans with Disabilities Act, http://www.eeoc.gov/eeoc/publications/fs- ada.cfm (“The basic rule is that with limited exceptions, employers must keep confidential any medical information they learn about an applicant or employee. * * * For example, an employee’s request for a reasonable accommodation would be considered medical information subject to the ADA’s confidentiality requirements.”). In short, a reasonable interpretation of the ADA, as construed by this Court in accommodation cases, would not treat as voluntary a medical disclosure by an employee that is required by an employer in order to obtain a reasonable accommodation; but rather would permit employers to be held accountable for breach of confidentiality. In light of the ADA’s mandates and relevant EEOC guidance, the Kingston district court’s holding that medical information revealed in the reasonable accommodation process is not entitled to confidentiality is wrong and creates the perverse result of exposing individuals to potential stigma and discrimination in order to secure an opportunity to work – a disservice to the intent and purpose of the ADA. This Court therefore should disregard the non-binding cases of Sherrer and Kingston because they provide no legitimate basis for the district court’s determination that Messier’s disclosure was voluntary and unprotected. C. Even if Messier’s disclosure was voluntary, it should be shielded from disclosure. If this Court were to decide that Messier’s description of his medical condition was unsolicited, the district court nonetheless erred in holding that Messier’s response was statutorily unprotected. An involuntary disclosure is not a prerequisite to coverage under the ADA’s confidentiality provision. Pursuant to EEOC guidance, an employer should maintain confidentiality of medical information about its employees, even if voluntarily disclosed. Specifically, the guidance states that “[t]he ADA requires employers to treat any medical information obtained from a disability-related inquiry or medical examination (including medical information from voluntary health or wellness programs, as well as any medical information voluntarily disclosed by an employee, as a confidential medical record.” Disability-Related Inquiries at 4 (footnote omitted). See also EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (Psychiatric Disabilities), No. 915.002 at 17 (Mar. 25, 1997) (“Employers must keep all information concerning the medical condition or history of its applicants or employees, including information about psychiatric disability, confidential under the ADA. This includes medical information that an individual voluntarily tells his/her employer.”) (emphasis added). See also Preemployment Questions at 21 (“Does the employer's confidentiality obligation extend to medical information that an individual voluntarily tells the employer ? Yes.”); id. at 11-12 (advising employers who ask applicants with disabilities to “self-identify” as part of its affirmative action program that they must keep confidential the medical information voluntarily disclosed). The Commission’s interpretation fosters broad protection of employee medical information and the liberal enforcement of the confidentiality provision in a manner that is consistent with the intent and purpose of the ADA. EEOC guidance is not binding on this Court, and many of the courts, including the district court below, which have addressed the ADA confidentiality issue have chosen to ignore it. See, e.g., R.25, Op. at 9 (“EEOC guidelines . . . are not controlling on this court”). However, because the Commission’s consistent guidance on the confidentiality of medical information constitutes “‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance,’” Federal Express Corp. v. Holowecki, 552 U.S. 389, 399 (2008) (quoting Bragdon v. Abbott, 524 U.S. 624, 642(1998)), it is entitled to a “measure of respect.” Id. at 399. When a court reviews an agency’s construction of a statute which it administers, and the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. Here, the ADA is silent on the question of voluntary disclosures and whether they are protected under the confidentiality provision. Nothing in the language of the ADA’s confidentiality provision excludes from its coverage medical information that was voluntarily disclosed by the employee. Thus, the district court’s reliance on an extra-statutory exemption of “voluntariness” to exclude Messier’s medical information from confidentiality is not supported by the plain language of the statute. In that a court is obliged to reject a construction or theory that is not supported by the statutory language, was never mentioned by Congress during the legislative process, does not comport with congressional intent, and restricts the scope of a remedial act, Rodriquez v. Compass Shipping Co., Ltd., 451 U.S. 596 (1981), this Court should not consider whether Messier “voluntarily” disclosed his medical information in determining whether Thrivent breached the confidentiality provisions of the ADA. While a number of other courts have decided that medical information voluntarily disclosed by an employee is not protected by the ADA, none have provided a persuasive rationale for their creation of an extra-statutory requirement of involuntariness. See, e.g., C.R. England, 644 F.3d at 1047 (if employer discloses medical information that was voluntarily offered by employee, outside of context of authorized employment-related medical examination or inquiry, then employer is not subject to liability under ADA); Bennett v. Dominguez, 196 Fed. Appx. 785, 793 (11th Cir. 2006) (“the EEOC never inquired into whether Bennett had a disability or as to the nature or severity of the disability that qualified Bennett for the VRA program. The only information about Bennett's disability came from his voluntary disclosure, which is not covered by 42 U.S.C. § 12112(d)(2).”); Yoder v. Ingersoll-Rand Co., 172 F.3d 51 (Table) (6th Cir.1998); Cash v. Smith, 231 F.3d 1301, 1307 (11th Cir. 2000) (granting summary judgment because “the disclosure that Cash complains of was not the result of an examination ordered by [the employer], but of a voluntary disclosure that Cash made to [her supervisor]. The statute and regulation cited by Cash [i.e., ADA § 102(d) and 29 C.F.R. § 1630.14(c) ] do not govern voluntary disclosures initiated by the employee[.]”). See also Ford Motor Credit, 531 F.Supp.2d at 937; Ballard v. Healthsouth Corp., 147 F.Supp.2d 529, 534-35 (N.D.Tex. 2001) (an employee is not entitled to the protection of the confidentiality provisions of the ADA when he voluntarily disclosed his HIV infection). Instead, these courts have routinely superimposed the “voluntary disclosure” exception onto the confidentiality analysis, but none of them has identified or cited a portion of the statute, its legislative history, or an administrative regulation that justifies or supports the conclusion that medical information volunteered by employees is not entitled to confidentiality. C.R. England, 644 F.3d at 1047 (“the plain language of the statute is silent with regard to such information”). Nor is there any basis for concluding that the ADA’s confidentiality provision excludes a voluntary medical disclosure. In fact, as the Tenth Circuit noted in C.R. England, “the only mention of the word “voluntary” appears in § 102(d)(4)(B), which refers to “’voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site,’ 42 U.S.C. § 12112(d)(4)(B),” and “this provision does not expressly include [or for that matter exclude] voluntarily disclosed medical information . . . .” Id. Consequently, “in an era of increasing and well-founded concern about medical privacy and the rampant dissemination of confidential information ,” IMS Health Inc. v. Sorrell, 630 F.3d 263, 291 (2d Cir. 2010) (Livingston, J., dissenting), it was well beyond the authority of this district court to revise the ADA to make “involuntariness” a criterion for confidentiality. Lee v. City of Columbus, Ohio, 636 F.3d 245, 257-58 (6th Cir. 2011) (“[i]t is not within the province of the courts to rewrite legislation [or] superimpose language onto statutes”). Instead, the focus should be on the statute’s intent. Here, the ADA’s text makes clear that Congress intended to give persons with disabilities an equal footing in employment, 42 U.S.C. § 12101(a)(7), and in so doing, to protect the privacy of their medical information if it is revealed during their employment process. 42 U.S.C. § 12112(d)(3)(B), (4)(C). The generality of the ADA’s confidentiality provision conveys Congress’ intent to protect the privacy of medical information obtained by the employer, whether its disclosure by the employee was voluntary or compelled. Indeed, Congress recognized “that there exists a compelling need to establish a clear and comprehensive Federal prohibition of discrimination on the basis of disability in the area of employment in the private sector.” ADA History, 1990 U.S.C.C.A.N. 303, 310, 1990 WL 125563, at 7. It would be consistent with the terms of the statute and its legislative intent to broadly apply the confidentiality provision. Cf. Dellinger v. Science Applications Int’l, 649 F.3d 226, 235 (4th Cir. 2011) (King, J., dissenting) (“I am therefore left to wonder why, in the face of a statute’s relative silence as to a material enforcement term, we must presume that a particular avenue is foreclosed because it is not explicitly mentioned, rather than permitted because it is not specifically prohibited.”); Healy Tibbitts Builders, Inc. v. Dir., Office of Workers’ Comp. Programs, 444 F.3d 1095, 1100 (9th Cir. 2006) ("[F]aced with two reasonable and conflicting interpretations, [an act] should be interpreted to further its remedial purpose."). An extension of the confidentiality provision to voluntary medical disclosures would avoid creating a situation where the “rights guaranteed by the ADA are meaningless” because of inadequate protections under the law. ADA History, 1990 U.S.C.C.A.N. 303, 322, 1990 WL 125563, at 19. And, a broad construction of the confidentiality provision would clearly restrain an employer’s misuse of medical information in its possession. See 29 C.F.R. §1630.14(c)(2) (“Information obtained under paragraph (c) of this section regarding the medical condition or history of any employee shall not be used for any purpose inconsistent with this part.”); Matson v. Bd. of Educ. of City Sch. Dist. of NY, 631 F.3d 57, 70 (2d Cir. 2011) (Straub, J., dissenting in part, concurring in part) (quoting Doe v. City of NY, 15 F.3d 264, 267 (2d Cir.1994)) (“‘Extension of the right to confidentiality to personal medical information recognizes that there are few matters that are quite so personal as the status of one's health, and few matters the dissemination of which one would prefer to maintain greater control over.’”); NLRB v. Certified Grocers of Ill., Inc., 806 F.2d 744, 749 (7th Cir. 1986) (“[t]he usual purpose of confidentiality is not to maintain secrecy but to vest control over disclosure in one or a few persons . . . [and] to protect the privacy of . . . employees”). Accordingly, the EEOC’s interpretation requiring confidentiality of medical information voluntarily disclosed by the employee is consistent with clear congressional intent. Cf. Chevron v. Natural Res. Def. Council, 467 U.S. 837, 843 n.9 (1984) (“The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.”). Its liberal interpretation offering protection for all medical information is a comprehensive safeguard. Indeed, similar to voluntary disclosures of medical information by employees, the text of the ADA also is silent as to whether medical information provided by an employee in response to medical inquiries addressed in 42 U.S.C. § 12112(d)(4)(A) are entitled to confidentiality. However, the EEOC has made clear in its guidance that “[t]he ADA requires employers to treat any medical information obtained from a disability-related inquiry or medical examination (including medical information from voluntary health or wellness programs), as well as any medical information voluntarily disclosed by an employee, as a confidential medical record. “ Disability-Related Inquiries at 4. See also Question 14, Job Applicants and the [ADA], http://www.eeoc.gov/facts/jobapplicant.html (“[t]he ADA contains strict confidentiality requirements. * * * The confidentiality requirements protect both information voluntarily revealed as well as information revealed in response to an employer's written or oral questions or during a medical examination.”). Courts, including the district court below, R.25, Op. at 5, have willingly adopted the view that medical information provided in response to medical inquiries are protected by the ADA’s confidentiality provision. C.R. England, 644 F.3d at 1047 (“Disclosure of confidential information obtained through an authorized medical examination or inquiry would constitute a violation of § 102(d) and could give rise to a claim under the ADA”); Grimsley v. Marshalls of MA, Inc., 284 Fed.Appx. 604, 610 (11th Cir. 2008) (“ADA also requires an employer to keep confidential any information about an employee's medical condition or history gleaned from a permissible medical examination or inquiry”); Mudra v. School City of Hammond, 2004 WL 3318761, at *6 (N.D. Ind. 2004) (unpublished) (stating that section 102(4)(C) “provides that information regarding the medical condition or history of an employee, obtained as a result of an acceptable examination or inquiry are subject to the confidentiality provisions”). This Court respects medical confidentiality. See Denius v. Dunlap, 209 F.3d 944, 957 (7th Cir. 2000) (“medical information may be a form of protected confidential information because of its intimate and personal nature”); Schaill v. Tippecanoe County Sch. Corp., 864 F.2d 1309, 1322 n.19 (7th Cir.1989) (recognizing “a substantial privacy interest in the confidentiality of medical information”). Therefore, it should follow the Commission’s guidance on the matter of protecting all employee medical information and promote medical privacy along with equal opportunity in employment to give full “effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842; see also Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 835 n.2 (7th Cir. 2005) ([w]e frequently look to EEOC guidelines for guidance in discrimination cases”). III. AS A MATTER OF PUBLIC POLICY, THE DISTRICT COURT IMPROPERLY DETERMINED THAT THRIVENT WAS NOT REQUIRED TO HOLD CONFIDENTIAL ITS FORMER EMPLOYEE’S MEDICAL INFORMATION. As a matter of public policy and statutory intent to prevent information about an individual's disabilities from being a factor in employment decisions, the district court should have considered the ADA’s goal of ensuring the integrity and confidentiality of an individual’s medical information and protecting that information from unauthorized uses or disclosures before it condoned Thrivent’s disclosure of Messier’s medical information in a job reference to a prospective employer. By narrowing the ADA’s protection from unwanted disclosures, the district court unduly exposes employees (and applicants) to future discrimination merely because information they divulged regarding their medical conditions or histories was not provided in response to a medical inquiry. Section 102 of the ADA indicates that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a) (emphasis added). The ADA’s prohibition against discrimination includes employer pre-offer medical inquiries of an applicant. 42 U.S.C. § 12112(d)(2)(A); 42 U.S.C. § 12112(d)(4)(A). Despite these legal mandates, the district court in this case has created an exception that permits prospective employers to circumvent the ADA’s proscription on employer access to pre-employment medical information. Here, Thrivent provided Messier’s medical information to Reference Matters, which represented itself to be a prospective employer who was considering Messier for employment. In this circumstance, Messier was an applicant and the ADA would prohibit Reference Matters, the putative employer, from legally receiving his medical information. 42 U.S.C. § 12112(d)(2)(A). If the district court’s ruling stands, former employers will be allowed to reveal medical information in job references to prospective employers who are not legally entitled to such information at the applicant stage. Such medical disclosures could then subvert, if not nullify, the ADA’s ban on an employer’s acquisition of pre-offer medical information, 42 U.S.C. § 12112(d)(2)(A), and create an unlawful interference with an applicant’s enjoyment of future employment opportunities or right to be free of disability discrimination in hiring in violation of Section 503, 42 U.S.C. § 12203(b). This cannot be what Congress intended when it crafted the confidentiality provision or imposed an absolute prohibition against the acquisition of medical information by a prospective employer. As the pre-employment inquiry provision of the ADA makes clear, a prospective employer is not entitled to any medical or disability-related information during the pre- offer stage. See 42 U.S.C. § 12112(d)(2)(A). Legislative history indicates that the prohibition against medical inquiries at the pre-offer stage was included “[i]n order to assure that misconceptions do not bias the employment selection process[.]” ADA History, 1990 U.S.C.C.A.N. 303, 355, 1990 WL 125563, at 72. Congress observed that, historically, when employers “requested information concerning an applicant's physical or mental condition[,][t]his information was often used to exclude applicants with disabilities—particularly those with so-called hidden disabilities such as epilepsy, diabetes, emotional illness, heart disease and cancer—before their ability to perform the job was even evaluated.” Id. More importantly, Congress believed that the “requirement that job criteria actually measure the ability required by the job is a critical protection against discrimination based on disability. As was made strikingly clear during the hearings on the ADA, stereotypes and misconceptions about the abilities, or more correctly the inabilities, of persons with disabilities are still pervasive today.” Id. at 355, 1990 WL 125563, at 71. In light of continued impediments to equal access and opportunity for disabled workers, and the ADA’s endeavor to “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities,” Findings and Purpose, 42 U.S.C. § 12101(b)(2), the only justifiable outcome is to require employers to maintain confidentiality of all medical information they receive about their employees and to prohibit employers from freely disclosing employees’ (current and former) medical information except in limited circumstances. McPherson v. O'Reilly Auto., Inc., 491 F.3d 726, 732 (8th Cir. 2007) (“[t]he ADA prohibits an employer from disclosing confidential medical information about an ex-employee”); Transport Workers Union of Am., Local 100, AFL-CIO v. New York City Transit Auth., 341 F.Supp.2d 432, 437 (S.D.N.Y. 2004) (ADA “entitles employees (of covered institutions) to maintain a special zone of privacy from their employers concerning their health and medical conditions”). Such restriction of an employer’s use and disclosure of an employee’s medical information is consistent with statutory intent. Ford Motor Credit, 531 F.Supp.2d at 936 (“The ADA strictly limits the type of inquiries an employer may make regarding its employees’ medical conditions as well as the uses to which this information may be put once it is gathered.”). This approach would advance the statute’s mission to prevent hiring discrimination and promote medical privacy. To ensure that the employer’s use of medical information is in accordance with the ADA’s confidentiality provision, 42 U.S.C. § 12112(d)(4)(C)(incorporating 42 U.S.C. § 12112(d)(3)(B) & (C)), the EEOC, as the enforcer of the ADA, issued guidance that clarifies the employer’s limited use of medical information. As a general matter, the guidance requires employers to maintain as confidential all medical information about its employees. See Psychiatric Disabilities at 17 (“Employers must keep all information concerning the medical condition or history of its applicants or employees, including information about psychiatric disability, confidential under the ADA. This includes medical information that an individual voluntarily tells his/her employer.”); Preemployment Questions at 20 (“An employer must keep any medical information on applicants or employees confidential.”). To prevent illegal medical disclosures, EEOC guidance advises that: “where a current supervisor has medical information regarding an employee who is applying for a new job, s/he may not disclose that information to the person interviewing the employee for the new job or to the supervisor of that job.” Questions and Answers: Enforcement Guidance on Disability–Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, EEOC Notice 915.002, 2000 WL 33407183, at *13 (EEOC, July 26, 2000). Additionally, EEOC guidance proscribes employers from asking third parties, including former employers, questions it could not ask the applicant directly. Preemployment Questions at 12. Applying this guidance to the instant case, it would seem logical that if a current employer cannot rely on medical information in its possession when considering an employee for a new position, a former employer’s disclosure to a prospective employer is equally impermissible. Indeed, permitting a former employer to disclose medical information to the potential employer who could then evaluate medical information at the pre-offer stage of the employment process serves no legitimate employer purpose, but simply serves to stigmatize the person with a disability. Furthermore, inasmuch as the prospective employer is not entitled to any medical information at the applicant stage, its acquisition of medical information from the former employer would essentially undermine, if not nullify, the protections and proscriptions of section 102(d). Even if in this case Reference Matters and other prospective employers may not have requested medical information about Messier, the outcome is the same. If a former employer voluntarily provides the prospective employer with medical information, the prospective employer’s inadvertent receipt of and possible reliance on such medical information still compromises the employment process and places individuals with disabilities at a grave disadvantage. Lastly, to ensure that a disabled applicant is judged on his or her qualifications, the Commission guidance advises that “[a]n applicant might state that his current employer should not be asked for a reference check until the potential employer makes a conditional job offer. In this case, the potential employer could not reasonably obtain and evaluate the non-medical (sic) information from the reference at the pre-offer stage.” Preemployment Questions at 18. Individually and collectively, the EEOC guidance makes every effort to advance equal opportunity in employment for individuals with disabilities who may have disclosed medical information to their employers. This Court therefore should follow EEOC guidance and construe the confidentiality provision as imposing a broad prohibition that precludes employers from disclosing a former employee’s medical condition or history, however obtained, to prospective employers. Lee, 636 F.3d at 251 (“‘the limited disclosure protection [provided by these ADA provisions] furthers the anti-discrimination thrust of both statutory schemes. The restriction on broad disclosure is a protection against undue discrimination of sensitive information that could lead to discrimination.’”) (internal citation omitted). This statutory interpretation is consistent with the ADA’s mission of focusing the employment process on an individual’s ability to perform the job and maintaining the privacy of the individual’s medical or disabling condition. CONCLUSION The evidence in this case supports a finding that a performance-related inquiry triggered Messier’s revelation of his medical information, and thus his disclosure was entitled to confidentiality. At minimum, the evidence is sufficient to create a genuine issue of fact as to whether Thrivent asked a job performance-related question. Moreover, the Commission’s broad view of the confidentiality provision as set forth in its guidance is consistent with the text of the statute, legislative intent, and sound public policy. Therefore, the Commission urges this Court to vacate the judgment of the district court on the Commission’s motion and enter partial summary judgment for the EEOC or remand the case for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ______________________________ s/PAULA R. BRUNER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4731 paula.bruner@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 9,943 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in Palatino Linotype 12 point. s/Paula R. Bruner Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 Dated: April 30, 2012 CIRCUIT RULE 30(D) STATEMENT Pursuant to 7th Circuit Rule 30(d), counsel certifies that all material required by 7th Circuit Rules 30(a) and 30(b) are included in the Appendix. s/Paula R. Bruner Attorney SHORT APPENDIX TABLE OF CONTENTS --------------------------------------------------------------------- Date Docket Document Appendix No. No. ------------+---------+-------------------------------+-------------- District Court Docket S.A. 1 6/15/2011 25 Decision and Order granting S.A. 6 Def.’s summary judgment motion and denying EEOC’s partial summary judgment motion 6/15/2011 26 Judgment S.A. 16 3/1/2011 12 Stipulated Findings of Fact S.A. 17 3/1/2011 12-1 Ex. A- Emails between Brey S.A. 23 and Messier 3/1/2011 12-2 Ex.B – Thrivent Responses to S.A. 27 Reference Matters, Inc. -------------------------------------------------------------------- CERTIFICATE OF SERVICE I, Paula R. Bruner, hereby certify that I electronically filed the foregoing brief and short appendix with the Court via the appellate CM/ECF system, this 30th day of April, 2012. I also certify that the following counsel of record, who has consented to electronic service, will be served the foregoing brief and short appendix via the appellate CM/ECF system: Counsel for Defendant/Appellee: Lawrence T. Lynch, Esq. Foley & Lardner, LLP 777 E. Wisconsin Avenue Milwaukee, WI 53202-5306 414-297-5824 llynch@foley.com s/Paula R. Bruner Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 ********************************************************************************** <> <1> This decision has been published at 2011 WL 2444060 (E.D. Wis. June 15, 2011). <2> The Commission is not challenging the court’s determination that Thrivent did not make a medical inquiry. <3> The limited circumstances for medical disclosures are outlined in 42 U.S.C. § 12112(d)(3)(B)(i)-(iii), and further clarified in EEOC guidance. See Pre-Employment Inquiry Guidance at 20 (“medical information may be given to -- and used by – appropriate decision-makers involved in the hiring process so they can make employment decisions consistent with the ADA”).