In December 2007, a group of current and former employees of the City of Columbus Police Department brought a claim alleging that their employer violated both Section 504 of the Rehabilitation Act(“Section 504”) and their right to privacy under the U.S. Constitution. The plaintiffs challenged a citywide directive requiring employees who were returning from sick leave, injury leave, or restricted duty to submit a doctor’s note to their supervisors. Under the directive, these notes were required to contain a description of the nature of the illness, and a recommendation as to whether the employee was fit to return to duty. The plaintiffs asserted the directive violated the Rehabilitation Act and privacy provisions of the U.S. Constitution because it mandated disclosure of confidential medical information. The District Court found for the plaintiffs and granted a permanent injunction prohibiting the City from enforcing the directive. The defendant then appealed to the Sixth Circuit U.S. Court of Appeals, and a decision was reached on February 23, 2011.
In reaching this conclusion, the Sixth Circuit noted that the standards for employment discrimination under Section 504 of the Rehabilitation Act are generally the same as those under the Americans with Disabilities Act (“ADA”). However, the Court also noted that the two statutes differ as to what constitutes “employment discrimination.” The Court stated that under the ADA, a plaintiff’s disability need only be a “motivating factor” in an adverse employment action for a claim to succeed, whereas under Section 504, the plaintiff’s disability must have been the “sole” basis for the adverse action. In other words, if the defendant can demonstrate an alternate reason for the action, then the claim will not succeed. The Court noted that both the ADA and Section 504 place limitations on employer’s ability to demand the disclosure of medical records, but held that the plaintiffs held the burden of demonstrating that the City’s directive constituted a “prohibited inquiry” under the laws.
The Sixth Circuit chose not to follow precedent from other Circuits (see, e.g., Conroy v. New York State Dep’t of Correctional Services, 333 F.3d 88 (2d Cir.2003)) which held that an employer’s mere request for a diagnosis after an employee’s medical leave amounted to a disability-related inquiry under the ADA and Section 504, simply because such inquiries tend to reveal a disability. Instead, the Sixth Circuit Court distinguished “general inquiries” such as that existing in the City’s directive from those inquiries which specifically inquire into the nature and severity of an individual’s disability. The Court reasoned that if it were to strike down any general inquiry simply “because it may tend to reveal a disability,” this “would be overbroad and eliminate many legitimate inquiries not intended to identify disabilities.” The Court thus distinguished questions about medications, illnesses, mental conditions, or past impairments from an employer’s request for a medical return-to-work form (as required by the City’s directive).
Furthermore, the Sixth Circuit found that since this case was brought under the Rehabilitation Act, and not the ADA, the discrimination must have occurred solely on the basis of disability in order for the claim to succeed. The Court held that the directive’s mere “tendency to reveal” a disability fell far short of this requirement, and that the plaintiff had the burden of proving that a medical inquiry was intended to reveal or necessitated revealing a disability in order to come within the protections of the ADA. Here, the Court found no evidence that the directive intended to reveal or necessitated revealing a disability. Therefore, the directive did not trigger the ADA protections as incorporated into the Rehabilitation Act.
Further, the Court held that even if the policy in question is disability-related, it is not automatically prohibited because it applies to all employees regardless of disability. The Court cited EEOC guidance opining that an employer is entitled to know the reason for an employee’s absence. The District Court had held that it was inappropriate to require employees to disclose medical information to their direct supervisors as the policy directed, as opposed revealing it to human resources employees who did not work with the employees on a daily basis. However, the Sixth Circuit said that the District Court created an artificial distinction between supervisors and human resources departments, and that the Rehabilitation Act and ADA do not differentiate between the two. In addition, the Court found that the ADA allows an employer to make inquiries into medical information without designating a specific department within the employing entity as a recipient.
The Sixth Circuit also overturned the lower court’s holding that the directive violated the plaintiffs’ privacy rights. The Court explained that the Sixth Circuit has a “different approach to assessing informational privacy claims” that requires that the privacy interest implicate a fundamental right, citing Lambert v. Hartman, 517 F.3d 433, 442 (6th Cir. 2008). A fundamental right is a right arising from the Constitution and the cases that interpret it. Fundamental rights are afforded the highest level of protection from the courts since they are considered “of fundamental importance.” If a law restricts such a right, it will be struck down unless it: (a) serves a compelling state purpose, and (b) is “narrowly tailored” to achieve that purpose.
Unlike other Circuits, in the past the Sixth Circuit has narrowly interpreted Supreme Court holdings pertaining to the right to informational privacy. The Sixth Circuit has only found informational-privacy interests to be fundamental rights where the release of the information could lead to physical injury to the plaintiff, or where the information was of a “sexual, personal, and humiliating nature.” The Court acknowledged that people cannot reasonably expect that medical history will be kept completely confidential, and pointed out that it had never previously held that the disclosure of medical records amounts to a violation of the right to privacy. The Court therefore found that the City’s directive did not violate the plaintiffs’ Constitutional right to privacy.
This case will have implications for plaintiffs seeking relief on confidentiality claims. According to this opinion, the ADA will provide a higher standard of protection than the Rehabilitation Act, because the Court held that under the latter, the tendency of the nature of an illness to disclose a disability must be the sole reason for an adverse discriminatory action, which it held would not be true under the ADA. The Constitutional privacy question sets a high threshold in the Sixth Circuit, but could conceivably come out differently in a different jurisdiction. The definition of fundamental importance here is very narrow and restrictive, and will bar many claims.
Additionally, the Court’s discussion of the Rehabilitation Act’s “sole” basis standard for employment discrimination cases highlights the high burden on plaintiffs in such cases.