Can A Non-Disabled Employee Recover Under the ADA?
Yes, in the Seventh Circuit they sure can.
In Nawara v. Cook County, a three-judge panel in the U.S. Court of Appeals for the Seventh Circuit ruled that employees who prove a violation of the Americans with Disabilities Act (ADA), which bars unlawful medical exams and inquiries, are entitled to recover backpay even though the employee did not allege and there were no findings that the employee was disabled or perceived to be disabled.
What? How so, you say?
Bloomberg Law asked me the same question and published my thoughts in this April 7 article about the case by reporter Khorri Atkinson.
Let’s Start With The Facts
Mr. Nawara, a former Cook County correctional officer, engaged in altercations with colleagues. Wardens don’t really like that, and the frequent fighting prompted the Sheriff's Office to require a fitness-for-duty examination.
He initially resisted signing medical release forms, leading to unpaid leave, but then complied, was deemed fit, and returned to work.
This is not the end of the story however. Mr. Nawara sued Cook County and the sheriff, alleging the examination requirement violated the ADA.
Nawara sued Cook County and the sheriff, alleging the examination requirement violated the ADA. The jury found in his favor but awarded no damages. The district court restored his seniority but denied back pay.
On appeal, the court affirmed the seniority restoration and reversed the denial of back pay, remanding for further proceedings.
Interestingly, the court interpreted the ADA provision in question, 42 U.S.C. § 12112(d)(4), to mean that a violation of the provision itself constitutes “discrimination on account of disability” and extended the ADA's reach to protect employees from unlawful medical examinations and inquiries, regardless of whether they are disabled or perceived to be disabled.
This interpretation ensures that all employees are safeguarded against intrusive medical inquiries that are not job-related or consistent with business necessity.
It is a decidedly employee-friendly ruling.
Broader Implications Of The Courts ADA Interpretation
Bloomberg asked about my thoughts on the broader implications of this statutory interpretation, which the Equal Employment Opportunity Commission (EEOC) and U.S. Department Of Justice (DOJ) supported in their amicus brief.
(The agencies argued that precedents set by the Sixth and Tenth Circuits support this interpretation.)
Meanwhile, the defendant said that the Third, Fifth, and Eighth Circuits do not allow an award of back pay without evidence of disability discrimination.
My take started with the basic premise that the ADA is a remedial statute.
However, and as I said in the article, I do not think that the result here is consistent with the legislative intent or history behind the ADA, which was enacted to remediate for discrimination perpetrated against individuals with a disability, those regarded or perceived as having a disability, and individuals with a record of a disability,
That said, by interpreting the ADA provision to mean that a violation itself constitutes “discrimination on account of disability,” the court extends the ADA’s reach to protect employees from unlawful medical examinations and inquiries, regardless of whether they are disabled or perceived to be disabled.
This interpretation ensures that all employees are safeguarded against intrusive medical inquiries that are not job-related or consistent with business necessity—a position that is certainly consistent with the current EEOC and DOJ’s interpretation of discrimination.
Takeaways
As I told Khorri, the ruling may encourage more employees to challenge unlawful medical examinations and inquiries, knowing that they can seek back pay even without proving disability discrimination (well, in the 7th Circuit).
This could lead not only to an increase in ADA-related litigation, but to confusion for employers as to when and how to accommodate qualified individuals with a disability (within the meaning of the statute).
Employers in the 6th, 7th, and 10th Circuits, be aware: employees without disabilities can recover backpay if they can prove a violation of the ADA.