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
**********************************************************************************
<<FOOTNOTES>>
<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”).