In the case of Mullin v. Department of Veterans Affairs, the Eleventh Circuit U.S. Court of Appeals recognized for the first time a private right of action under the Americans with Disabilities Act (ADA) and Rehabilitation Act for an employee whose medical information is disclosed, without authorization, by his or her employer. In the Mullin case, our client testified that she had disclosed details of her cancer diagnosis to her supervisor in medical forms she was required to fill out to obtain leave. She later learned that the supervisor had disclosed her condition to others. She testified to the significant distress she experienced when she learned that her private information had been disclosed.
The Mullin case will become an important landmark in the law as it relates to the rights of employees seeking medical leave and other accommodations for disability. It stands for the principal that employees should feel safe disclosing this sensitive information to their employers. And if that trust is violated, they have a legal right to recover.
The order is below. Here is the key language:
[Under the ADA], “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to . . . [the] terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Moreover, “[a] covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A).
The relevant regulation similarly states that “[a] covered entity may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. A covered entity may make inquiries into the ability of an employee to perform job-related functions.” 29 C.F.R. § 1630.14(c). Information obtained from an employee through a medical examination or inquiry “shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record . . . .” 29 C.F.R. § 1630.14(c)(1). The Rehabilitation Act similarly provides that the information obtained is generally “treated as a confidential medical record” under 42 U.S.C. § 12112(d)(3)(B), subject to limited exceptions. See 42 U.S.C. § 12112(d)(4)(C).
We have not addressed whether there is a private right of action under 42 U.S.C. § 12112(d)(4). But we have “explicitly recognize[d] that a plaintiff has a private right of action under 42 U.S.C. § 12112(d)(2), irrespective of . . . disability status.” Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1214 (11th Cir. 2010). We have also noted that “§ 12112(d)(2)(A) and (d)(4)(A) are parallel provisions with similar language and virtually identical pro- hibitions concerning medical inquiries . . . [and] proof of damages requirement . . . .” Russell v. City of Mobile Police Dep’t, 552 F. App’x 905, 907 (11th Cir. 2014) (per curiam).
We therefore recognize a private right of action under 42 U.S.C. § 12112(d)(4) irrespective of disability status. [. . .]To bring a claim under § 12112(d)(4), an employee must show that (1) the employer either made an unlawful inquiry in violation of § 12112(d)(4)(A) or violated its confidentiality requirements after making a proper inquiry under § 12112(d)(4)(C), and (2) the employee suffered a tangible injury from the unlawful inquiry or disclosure.
