Reference did not Violate Federal Law by Disclosing Former
Employee’s Migraine Condition
By org jforward wisbar 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
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
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
“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.