In EEOC v. Thrivent Financial for Lutherans (issued on November 20, 2012), the Seventh Circuit Court of Appeals, which is the federal appellate court covering Illinois, Indiana, and Wisconsin, ruled that a company did not violate the medical records confidentiality requirements of the Americans with Disabilities Act (ADA) by disclosing a former employee’s migraine condition to prospective employers.
In the case, Thrivent Financial for Lutherans (Thrivent) hired a worker, Gary Messier, through an agency, Omni Resources, to do programming work. All went well for several months when, without notice, Messier did not show up for work one day and did not call in. The Omni manager for the Thrivent account emailed Messier asking for an explanation, saying that Messier’s supervisor at Thrivent had called Omni looking for him, and they “need[ed] to know what [was] going on.” Several hours later, Messier responded by email to Omni and to his supervisor at Thrivent. Messier explained that he had been in bed due to a severe migraine, the likes of which he had not suffered in many years, that his medication regimen normally controlled those incidents, but when they did not (like that particular day) he would not be able even to call in to report his absence. Messier returned to work the next day, but approximately one month later he resigned from his job for unrelated (but not amicable) reasons.
When Messier had difficulty finding new employment, he began to suspect that he was being given a bad reference. He hired an online reference checking firm which contacted Thrivent pretending to be a prospective employer. That firm spoke with his former Thrivent supervisor, who disclosed in his conversation that Messier had a “medical condition where he gets migraines. I had no issue with that. But he would not call us. It was the not letting us know.”
The Equal Employment Opportunity Commission (EEOC) sued Thrivent, asserting that the supervisor had violated the confidentiality requirements under the Americans with Disabilities Act (ADA) by revealing “confidential medical information obtained from a medical inquiry.” The district court ruled in favor of Thrivent, stating that “[g]iven the vast number of reasons an employee could miss work without informing his employer, it seems unreasonable to assume that an employer checking in on his absent employee has the intent to request or acquire medical information.”
On appeal, the EEOC conceded that Thrivent’s request (through Omni) for an explanation of Messier’s “no call, no show” on the day in question was not a “medical inquiry” under the ADA, but nonetheless, it argued that the ADA’s confidentiality rules applied to all job-related inquiries that result in the revelation of medical information by the employee. The Court of Appeals rejected that broad reading of the statute and thus held that no violation had taken place because the company did not make a “medical inquiry.” Therefore, it did not need to keep Messier’s (voluntarily disclosed) condition confidential.
The employer in Thrivent can breathe a sigh of relief (although it will have certainly paid the price for having been proved “right” in litigation costs alone), as can employers who generally have to deal with the EEOC and its attempts to expand the reach of the statutes it enforces. Nonetheless, the lessons to be learned from this case are more nuanced than the final holding.
For example, employers should be aware (and “beware”) of the existence of “reference checking” firms who are hired to “see what you are saying about a former employee.”
More importantly, a fair reading of Thrivent shows that had the employer had some reason to know that Messier was likely not at work because of a medical condition or illness, then the result could have been very different. In those circumstances, an inquiry to the employee could more legitimately be seen as a type of medical inquiry, and the information revealed in response could have been confidential and protected under the ADA. That lack of foreknowledge is what saved the employer in Thrivent, as the Seventh Circuit Court of Appeals explained:
As these [cited] cases illustrate, previous courts have required—at a minimum—that the employer already knew something was wrong with the employee before initiating the interaction in order for that interaction to constitute a [medical] inquiry [under the ADA]. Neither Thrivent nor Omni had any such knowledge here. There is no evidence in the record suggesting that Thrivent or Omni should have inferred that Messier’s absence . . . was due to a medical condition. . . . When [Omni] emailed Messier . . . [it] had no idea that Messier was ill—let alone disabled. For this reason, [Omni’s] email cannot be [a medical] inquiry for the purposes of [the ADA].
Finally, and perhaps most importantly, employers should have procedures and training for those in their organization who may have to give job references—to the extent possible, such inquiries should be handled by a central human resources or labor relations function, and where individual supervisors are included, they should be trained in how to handle those responsibilities.
In Thrivent, the record does not reveal the training that may have occurred, nor does it confirm the accuracy of the EEOC’s representation about the reference-checker’s conversation (which covered performance problems in addition to the “no call, no show” issue) with the Omni supervisor. In fact, the parties had stipulated to the accuracy of the reference-checker’s recitation of its discussion with the Omni supervisor for purposes of the cross-motions for summary judgment. However, assuming the accuracy of that recitation, it seems readily apparent that the supervisor who provided the reference for Messier could have just as easily expressed his opinion that he “had a problem” with Messier missing work without “letting us know” without mentioning at all Messier’s medical condition. Training supervisors and others who bear this important responsibility can help reduce the risk that off-hand or unnecessary comments by the person providing the employment reference might expose an employer to costly litigation and potential liability.
Robert P. Casey is a shareholder in the Chicago office of Ogletree Deakins.