McKenna Employment Bulletin – December 2012
Headaches Are Not Always Confidential Medical Information
In EEOC v. Thrivent Financial For Lutherans, No. 11-2848, November 20, 2012, Seventh Circuit, the plaintiff filed an Americans with Disabilities Action alleging that the employer violated the ADA’s medical record confidentiality requirements by disclosing to potential employers the fact that the plaintiff had a migraine condition. The plaintiff disclosed this migraine condition to the employer only after the employer’s management had inquired into the plaintiff’s reason for his absence from work. The Court found that such a disclosure was not a medical examination or an inquiry under the ADA for purposes of coverage under the ADA. This was because management was unaware of the plaintiff’s migraine condition at the time it inquired into the reason for the plaintiff’s absence. Thus, the employer had no duty to treat its knowledge of the plaintiff’s migraine condition as a confidential medical record.
An Employee May Obtain An Injunction Against A Co-Employee Sexual Harasser
In EEOC v. KarenKim, Inc., 2012 WL 5072602 (2nd Cir. 2012), an employee brought an action for sexual harassment against the employer. The employee received injunctive relief specifically directed toward insuring that the former employee who had sexually harassed the female employee was no longer in a position to so harass store employees. The harasser had been the store manager with authority over all of the employer’s employees. The harasser was and remained in a long-standing romantic relationship with the employer’s owner and the highest officer. This was the primary reason that the harassment went unchecked for years. Another reason the injunction was warranted was that the owner could, absent an injunction, rehire the harasser, and, even if he was not rehired, the harasser’s relationship with the owner, as well as other employees, made it likely that he would remain a presence at the store, and raised concerns about the adequacy of responses to any further harassment.
