In EEOC v. Thrivent Financial for Lutherans, the key litigated issue was whether medical information derived from any job-related inquiry is subject to the medical record confidentiality requirements of the ADA.

Omni Resources, Inc. hired Gary Messier to work in Thrivent Financial for Lutherans' Appleton, Wisconsin, office. Messier worked at Thrivent for almost four months without incident, and during that time he was very good about notifying both Thrivent and Omni of planned absences. However, on November 1, 2006, Messier failed to report for work without informing his supervisor, John Schreiner, of his absence. Schreiner called Messier's account manager at Omni, Thomas Brey, looking for Messier, but Brey also did not know why Messier had not shown up for work that day.

Brey then emailed Messier, asking Messier to "give us a call" since he and Schreiner "need to know what is going on." The email did not mention or specifically request any medical issues or information. Hours later Messier replied to Schreiner and Brey, explaining that he had been in bed all day with a severe migraine that rendered him unable to function or even make a phone call, and that he had suffered from migraines since a major car accident in 1984. This was apparently the first time that Messier had disclosed his condition to either Thrivent or Omni.

One month later, Messier quit his job with Thrivent. He soon began looking for a new job, but prospective employers lost interest in him after conducting reference checks. Suspecting that Schreiner was saying negative things about him to employers, Messier hired an online reference checking agency to call Schreiner. Contacted by the agency, which pretended to be a prospective employer, Schreiner disclosed that Messier suffered from migraines.

Based on this conversation, Messier filed a change with the EEOC alleging disability discrimination under the ADA. When a settlement failed to occur, the EEOC filed suit, alleging that Thrivent violated the ADA's medical record confidentiality provisions (42 U.S.C. § 12112(d)) by revealing confidential medical information obtained from a medical inquiry or because the ADA's intent was to cover all employment-related inquiries. The district court granted Thrivent's motion for summary judgment, focusing on the first argument and holding that Brey's email did not constitute a "medical inquiry" and, therefore, did not trigger the protections of the confidentiality provisions. The EEOC appealed, declining to pursue the argument that Brey's email was a medical inquiry, but pursuing instead its argument that the ADA's confidentiality provisions cover all job-related inquiries.

On November 20, 2012, the US Court of Appeals for the Seventh Circuit issued an opinion in EEOC v. Thrivent Financial for Lutherans, affirming the judgment of the district court. The court rejected the EEOC's argument that the ADA's confidentiality protections extend to medical information derived from all job-related inquiries, rather than just medical inquiries.

In its appeal, the EEOC pointed to a reference to "job-related" inquiries in 42 U.S.C. Section 12112(d)(4)(B) to argue that the ADA's confidentiality protections extend to medical information derived from non-medical inquiries. The court rejected this reading of the statute, finding that the term "inquiry," when examined in the context of the entire section, refers only to medical inquiries, and that the statute does not encompass non-medical inquiries.

The court also distinguished two cases cited by the EEOC to support its reading of the statute. In Doe v. U.S. Postal Service and E.E.O.C. v. Ford Motor Credit Co., employers that asked about the nature of employees' illnesses were found to have conducted covered inquiries for purposes of the ADA. However, the Seventh Circuit noted that, in both these cases as well as in others where the ADA was found to apply, employers had some preexisting knowledge that the employee was ill or physically incapacitated. Absent this knowledge, the court concluded, an employer's request for information cannot constitute an inquiry under 42 U.S.C. Section 12112(d)(4)(B).

Since there was no evidence in the record that Thrivent or Omni had knowledge of Messier's migraine condition or should have inferred that he was ill prior to his response to Brey's email, the court concluded that the email could not be an inquiry for purposes of 42 U.S.C. Section 12112(d)(4)(B), and that Thrivent was, therefore, not required to treat the information disclosed by Messier as a confidential medical record.

Although the Seventh Circuit's decision creates a safe harbor from liability under the ADA for disclosure of employee medical information where an employer obtains medical information from a non-medical inquiry, the exception is so narrowly construed that employers should remain highly cautious when considering whether to disclose employee medical information. If an employer has any knowledge of an employee's illness or condition prior to making an inquiry, or even should have inferred that an employee is ill, the medical information that is received will likely be found to be confidential under the ADA, and the employer may be held liable for disclosing it.