Reference did not Violate Federal Law by Disclosing Former Employee’s Migraine Condition

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 20, 2012 – A Wisconsin plaintiff who alleged his former employer was sabotaging his employment prospects in violation of federal law by disclosing information about his migraine headaches to prospective employers recently lost in federal appeals courts.

The Americans with Disabilities Act (ADA) requires that employee medical information obtained from “medical examinations and inquiries” remain confidential.

When Gary Messier missed work one day at Thrivent Financial for Lutherans, supervisor Thomas Brey emailed to “inquire” about his absence. Late in the day, Messier responded that he had a severe migraine headache condition resulting from a major car accident in the 1980s.

He later quit his job, but used Thrivent as a reference. When prospective jobs fell through at the reference stage, Messier hired an online reference checking agency, which called Thrivent posing as a prospective employer with questions about Messier’s prior work.

One of Messier’s former supervisors disclosed that Messier suffered from migraines, and would not call anyone if a migraine triggered his absence from work. Messier had told Thrivent that his migraines were so debilitating that he couldn’t even get out of bed to place calls.

Based on the disclosure, Messier alleged disability discrimination under the ADA. The Equal Opportunity Employment Commission found “reasonable cause” and filed a claim against Thrivent in the U.S. District Court for the Eastern District of Wisconsin on Messier’s behalf.

The district court granted summary judgment to Thrivent, concluding the ADA did not apply because Thrivent learned of Messier’s migraine condition outside the context of a “medical exam or inquiry.” In EEOC v. Thrivent Financial for Lutherans, No. 11-2848 (Nov. 20, 2012), a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit agreed.

Although Thrivent “inquired” about Messier’s absence from work, it was not a “medical inquiry” as that term is used in the statute, the appeals panel explained.

It also rejected Thrivent’s primary argument that mere job-related inquires triggering responses about medical conditions fall within the protections of the ADA’s confidentiality provisions.

“Because the EEOC concedes on appeal that Brey’s email to Messier was not a medical inquiry, Thrivent was not required to treat the medical information that Messier sent in response to Brey’s email as a confidential medical record,” wrote Judge John Daniel Tinder for the panel.