In EEOC v. Thrivent Financial for Lutherans, the Seventh Circuit affirmed a decision from the United States District Court for the Eastern District of Wisconsin dismissing the EEOC’s lawsuit for an alleged violation of the ADA’s restrictions on an employer’s ability to disclose information gathered through “medical examinations and inquiries.”  In doing so, the Court sidestepped a potentially significant expansion of the law advocated by the EEOC.  The decision is a good reminder of the pitfalls created by the ADA and a warning about the EEOC’s desire to expand the Act’s prohibitions through litigation.

In Thrivent Financial, the EEOC sued on behalf of a former employee, Gary Messier, alleging a violation of the medical record confidentiality requirements of the ADA.  Messier had worked for Thrivent Financial for about four months when he failed to report for work one morning.  No one at Thrivent had received a call from Messier regarding his absences and, as a result, his supervisor sent an email stating simply, “Gary, give us a call, and give John a call.  We need to know what is going on.  John called here looking for you.”  Messier did not respond for hours, but then, just before the close of business, sent a lengthy email describing for the first time the severe migraine headaches he suffered and explaining that such a migraine had prevented him from reporting for work.  Two months later Messier resigned (the reasons for that resignation are not clear from the opinion), and then began having a very difficult time finding alternative employment.

Suspicious, Messier hired a service to determine the type of reference Thrivent was giving.  The service called Thrivent, who disclosed that, “Messier has a medical conditions where he gets migraines.  I had no issue with that.  But he would not call us.  It was letting us know.”  Messier filed a complaint with the EEOC, alleging that the disclosure of his migraines to a third party violated the ADA’s prohibition against revealing employee medical information obtained from “medical examinations and inquiries.”  The EEOC found cause, sued, and then lost the case on summary judgment in the District Court, which found that Messier’s decision to report to his employer that he suffered from migraine headaches was not the fruit of a medical examination or inquiry and, therefore, was not protected from disclosure under the ADA.

The U.S. Court of Appeals for the Seventh Circuit affirmed, finding that while the employer had asked Messier to account for his absence, that request was not, on its face, a medical examination or inquiry.  Rather, a request to an employee to explain and absence could provoke a whole host of explanations:  absences can be due to transportation problems, marital problems, weather related problems, housing problems, motivational problems, a car accident, or even an employee who just decided to quit.  Even if the information provided in response to a request was medical, according to the plain language of the statute the employer was required to treat that information as confidential only if the inquiry that resulted in the information being provided was a clear request for medical information.  Because the inquiry was not a medical inquiry, but instead was a simple request for the employee to account for his whereabouts, the information that was provided was not entitled to be treated as confidential medical information under the statute.

There are two important lessons for employers in the Thrivent Financial case.  First, the tortured reading of the ADA advocated by the EEOC in provides clear evidence that the commission will prosecute claims aggressively in an attempt to expand the reach of existing statutes.  The draft enforcement priorities that we reported on two months ago identify several other areas, including ADA enforcement and the use of Title VII to provide protection to LGBT employees, where the EEOC can be expected to take a similarly aggressive position.  Second, the case serves as an important reminder to employers about the ADA’s requirement that employers protect confidential medical information.  While Thrivent Financial was able to avoid liability based on two Federal courts interpreting the language of the statute, it paid a significant price in attorneys’ fees to get that result.  Ideally, employee medical information should be kept in a separate, secure file and should not be disclosed to third parties, regardless of the manner in which the employer gathered the information.