Published: November 16, 2010

written by Carol A. Chapman

On September 30, the Equal Employment Opportunity Commission (EEOC) filed a federal lawsuit in Wisconsin claiming that Thrivent Financial for Lutherans violated the Americans with Disabilities Act of 1990 (ADA) by making public to prospective employers a temporary employee’s confidential medical information.

Background
The EEOC filed its lawsuit against Thrivent in the U.S. District Court for the Eastern District of Wisconsin in Milwaukee. Thrivent, a fraternal benefit society authorized to do business in Wisconsin, is a Fortune 500 company whose Wisconsin offices are located in Appleton. According to its website, it is a faith-based nonprofit, membership-owned organization. Its business includes the sale of life insurance and other financial products and services.

According to the EEOC’s press release, its investigation preceding the filing of the lawsuit revealed that Thrivent provided confidential medical information about temporary employee Gary Messier’s medical condition — migraines — to prospective employers. In its lawsuit, the EEOC seeks injunctive relief and an order from the court requiring Thrivent to institute new equal employment opportunity policies, practices, and programs. On Messier’s behalf, the agency is seeking back pay, compensatory damages (such as job-search expenses, relocation expenses, and medical expenses), and punitive damages.

Legal basis for lawsuit
Among the protections available under the ADA and its amendments is the protection of employees and applicants from discrimination based on their actual and perceived disabilities. The ADA covers employers in the United States with 15 or more employees. The EEOC enforces the Act and other federal laws prohibiting discrimination in employment.

According to the EEOC complaint, Thrivent violated the ADA when it revealed Messier’s confidential medical information to prospective employers. It had previously obtained the information based on its own inquiry while Messier was working for the company. The EEOC alleges that Thrivent’s disclosures had a “severe and negative impact” on Messier’s ability to obtain employment from the prospective employers. The complaint further alleges that in disclosing the confidential information, the company acted intentionally and with malice or reckless indifference. Should Thrivent be found to have acted with malice or reckless indifference, it would be subject to punitive damages.

In support of the lawsuit, John Hendrickson, the EEOC’s regional attorney for litigation in Wisconsin, Illinois, Minnesota, Iowa, North Dakota, and South Dakota, noted: “Americans do not give up their privacy rights when they go to work. The ADA makes it clear that an employee’s medical information should remain confidential, and that employers should not be allowed to ruin an employee’s job prospects by revealing that sensitive information to other employers.” EEOC v. Thrivent Financial for Lutherans, E.D. Wis. Civil Action No.10-C-853 (E.D. Wis., Sept. 30, 2010).

Bottom line
This lawsuit is only one of many recently filed by the EEOC asserting violations of the ADA. In September and October alone, the EEOC instituted federal lawsuits in Hawaii, California, Pennsylvania, Colorado, Michigan, Louisiana, Georgia, and Maryland. These lawsuits allege disability discrimination, harassment, and/or retaliation by employers as diverse as U.S. Steel, Tarsadia Hotels (doing business as Comfort Suites), American Apparel Company (a garment factory), dental products manufacturer Ranir, drugstore chain Rite Aid, a Baltimore surveying company, a nonprofit organization, a printing company, and the Maverick Country Store chain of convenience stores.

You must ensure you’re following all requirements under the ADA and its amendments in your day-to-day operations. Supervisors and managers as well as HR personnel and senior management must understand that they can’t discriminate against employees based on either an actual disability or what they may perceive as a disability. That includes maintaining confidentiality about employees’ medical conditions, providing opportunities for employees to engage in the reasonable accommodation process before considering termination, and ensuring employees aren’t harassed or retaliated against on account of a disability. If you have any questions regarding your responsibilities as an employer under the ADA, you should contact your legal counsel.

Carol A. Chapman is an attorney with Axley Brynelson, LLP. For more information about workplace discrimination, contact Ms. Chapman at 608.283.6766 or cchapman@axley.com.

This article was featured in the November 2010 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul C. Glazer and published by M. Lee Smith Publishers LLC. Reproduced here with the permission of M. Lee Smith Publishers, LLC.

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