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Reference That Disclosed Migraines Can’t Be Sued

CHICAGO (CN) - A company is not liable for disclosing a former employee's history of chronic migraines when called upon as a reference, the 7th Circuit ruled.

Gary Messier spent five months working as a business analyst at Thrivent Financial for Lutherans, after the technology consulting agency Omni Resources placed him there for a temporary programming position in July 2006.

When Messier failed to report to work on Nov. 1, without notified anyone at Thrivent,

Omni account manager Thomas Brey inquired as to what happened in an email.

Messier replied hours later that he suffered from chronic migraines.

His email, as reproduced by the 7th Circuit, said: "People have many medical conditions that are not obvious on the surface. They struggle with them every-day and try to get thru [sic] life one day at a time. I've had these migraines since a major car accident in 1984."

Messier quit his job at Thrivent a month later, and apparently "the parting was not on good terms," according to the opinion authored by Judge John Tinder.

While Messier tried to get another job, three prospective employers lost interest in him after conducting reference checks.

Messier suspected that Thrivent was saying negative things about him, and one reference-checking agency later confirmed that a Thrivent supervisor was disclosing his migraine condition.

The Equal Employment Opportunity Commission sued on Messier's behalf, but U.S. District Judge William Greisbach granted Thrivent summary judgment.

Because Thrivent had learned about Messier's condition outside the context of a medical examination or inquiry, the confidentiality rule of the Americans with Disabilities Act did not apply.

Under the ADA, employers may not disclose information discovered through "job-related" inquiries.

The EEOC argued that Congress intended for the courts to adopt an "admittedly 'liberal interpretation'" of the confidentiality provisions.

A three-judge panel of the 7th Circuit concluded, however, that the plain meaning of the statute is clear.

"Job-related" inquiries, as defined in the statute, are clearly referring only to medical inquiries. Since Brey's email sought to determine why Messier had missed work, rather than inquire about any medical conditions he might have, the suit must fail.

"For all Thrivent and Omni knew, Messier's absence was just as likely due to a non-medical condition as it was due to a medical condition," Tinder wrote. "Indeed, as Thrivent pointed out to the district court, 'Messier could have had transportation problems, marital problems, weather-related problems, housing problems, criminal problems, motivational problems, a car or home accident, or perhaps he simply decided to quit his job at OMNI.'"

Brey's email to Messier could have qualified as a medical inquiry if Omni or Thrivent had pre-existing knowledge that Messier had health problems, the ruling states.

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