EEOC Loses Its Argument for an Overly Liberal Interpretation of "Inquiry" Under the ADA

If an employer asks “what’s going on?” and the employee responds by disclosing medical information, is that medical information subject to the confidentiality provisions of the ADA? The Seventh Circuit recently answered “No” to this question in EEOC v. Thrivent Financial for Lutherans, and rejected the EEOC’s broad interpretation of the ADA. Foley represented the winning employer, Thrivent Financial for Lutherans (Thrivent), in this dispute against the EEOC. The facts of the case were not developed through discovery and were stipulated to by the parties to enable the district court to address the central legal issue raised. Gary Messier, who was actually an employee of Omni Resources Inc., was on assignment at Thrivent. When Mr. Messier did not show up for work, Thrivent called Omni looking for him. Omni sent an email to Mr. Messier asking him to call Omni and Thrivent and further stating, “we need to know what’s going on. [Thrivent] called here looking for you.” Mr. Messier responded with a lengthy email disclosing that he had been in bed with a severe migraine and further revealing that he suffered from migraines since a car accident more than 20 years ago. Mr. Messier also offered that this information was “probably a lot more than either of you wanted to know. . . .” One month later, Mr. Messier suddenly terminated his employment with Omni and his assignment with Thrivent. Mr. Messier hired a reference checking agency. The reference checking agency contacted a Thrivent employee, who informed a representative for the agency that Mr. Messier gets migraines.

Mr. Messier filed a charge with the EEOC, who filed suit against Thrivent alleging that Thrivent violated the confidentiality provisions of the ADA, 42 U.S.C. § 12112(d), by revealing Mr. Messier’s migraine headaches. The ADA requires that medical information obtained from employees from “medical examinations and inquiries” remains confidential. The EEOC argued that Omni’s email asking “what’s going on” constituted a medical inquiry triggering the confidentiality protections of the ADA. Thrivent asserted that the information was not confidential because it was not obtained as a result of a medical inquiry or medical examination. The district court agreed with Thrivent and concluded that the medical information disclosed by Mr. Messier was not made in response to a medical inquiry and, therefore, was not subject to the ADA’s confidentiality requirements.

On appeal, the EEOC conceded that Omni’s email to Mr. Messier was not a medical inquiry but instead argued that the term “inquiries” as used in 42 U.S.C. § 12112(d)(4)(B) refers to all job-related inquiries and not just medical inquiries.

The Court declined to adopt the EEOC’s admittedly “liberal interpretation” of 42 U.S.C. § 12112(d) by relying on the plain language of the ADA. The Court noted that an “inquiry,” which may be construed as a request for information, must also be understood within its statutory construction of “medical examinations and inquiries.” The Court, citing the Merriam-Webster dictionary, held that the word “inquiries” does not refer to all generalized inquiries but only to medical inquiries. The Court also noted that section (d) is devoted to medical examinations and medical inquiries and not to “job-related” or “performance-related” inquiries in the general sense. 

The Court further noted that other 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 42 U.S.C. § 12112(d)(4)(B) inquiry.” Thrivent and Omni had no knowledge that Mr. Messier suffered from migraines until Mr. Messier voluntarily disclosed this information. As Thrivent pointed out, Mr. Messier could have responded in a myriad of ways to Omni’s email asking “what’s going on,” by disclosing transportation problems, marital problems, weather-related problems, housing problems, criminal problems, or perhaps that he simply decided to quit his job. Since Thrivent did not learn about Mr. Messier’s medical condition through a medical inquiry, it had no duty to treat Mr. Messier’s migraine condition as a confidential medical record because Mr. Messier voluntarily disclosed the information.

This significant decision clarifies for employers that medical information voluntarily disclosed by employees, not in response to a medical inquiry, will not be subjected to the confidentiality provisions of the ADA. The decision also thwarts the EEOC’s repeated attempt to broaden the reach of the ADA’s confidentiality provisions to unsolicited medical information. Nonetheless, employers should take steps to ensure any medical information received from an employee is treated as confidential to avoid becoming embroiled in litigation over whether the receipt of the information was through a medical examination or medical inquiry. The EEOC’s overbroad interpretation of the ADA demonstrates its aggressive approach to litigating disputes under the ADA.