Under the Americans with Disabilities Act of 1990, employees and job applicants cannot be discriminated against on the basis of a disability or a perceived disability. A provision of the ADA also requires employers to keep confidential the medical information that they may obtain about their employees--this means that employers generally cannot share information about a workers' health or disability during a job reference call, for example.
In a recent case in Wisconsin, however, a loophole in this law was exposed. In that case, a man's former employer told a prospective employer about the man's history of migraine headaches, which the man said sabotaged his chances of gaining employment. The man sued his former employer for the medical disclosure under the ADA, but he has now lost the case in a federal appeals court.
The court found that the ADA only requires employers to keep medical information confidential if the information has been gathered or shared through "medical examinations and inquiries." The employer in this case did not learn of the man's migraine issue from a medical exam or inquiry, but rather from the man's voluntary admission via e-mail on a day that he could not come into work.
The e-mail conversation does not count as an inquiry, according to the federal appeals court ruling, because it took place when the man missed work one day and his employer emailed him to ask him generally about his absence. The worker replied that he was suffering from a debilitating migraine, thus volunteering the medical information without being asked a medically-specific question.
While this case illustrates some of the complexities of the Americans with Disabilities Act, it should not discourage workers who have been discriminated against from standing up for their rights. It is often possible to obtain job reinstatement and compensation for damages after being the victim of an ADA violation.
Source: State Bar of Wisconsin, "Reference did not Violate Federal Law by Disclosing Former Employee's Migraine Condition," Joe Forward, Nov. 20, 2012
- Our Milwaukee law firm handles cases similar to the one that is discussed here. More information about this area of law is available on our Americans with Disabilities Act page.