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10th Circuit Court of Appeals Takes Narrow View of HIV Confidentiality Under the ADA

Posted on: May 5th, 2011 by Art Leonard No Comments

The U.S. Court of Appeals for the 10th Circuit, based in Denver, took a narrow view of the confidentiality requirements for medical information under the Americans With Disabilities Act in a decision issued on May 3 upholding a grant of summary judgment to an employer that had arguably required an HIV-positive person to disclose his status to co-workers as a requirement of working in his desired job classification.  The court premised its ruling in EEOC v. C.R. England, Inc., 2011 Westlaw 1651372, on the fact that the plaintiff had voluntarily disclosed his HIV-positive status to the employer's human resources director.

The plaintiff was diagnosed as HIV+ in 1999, and began working as a truck driver for the employer in November 2002.  After an incident with a co-worker that led the plaintiff to believe that the co-worker, who had become aware of plaintiff's HIV status, might have disclosed the information to management, the plaintiff told the company's human resources manager, in confidence, that he was HIV+.  A few weeks later, the plaintiff entered into an independent contractor arrangement with the company, under which he leased his truck from a sister company and worked on an individual assignment basis.  After working under this arrangement for a few months, the plaintiff decided to apply to become a driver-trainer for the company, and completed the company's five-day driver-trainer course in February 2003.

According to the court's description of events, "On the first day of training, [plaintiff] was called into [the HR manager's] office.  She expressed concern about his ability to become a trainer in light of his HIV-positive status.  Later that day, [plaintiff] and [the HR manager] met with C.R.England's general counsel…. to further discuss [plaintiff's] status as a trainer. [They] met again one or two days later to discuss C.R. England's concerns about [plaintiff's] role as a trainer and possible courses of action that might assuage its concerns.  During the second meeting, [the GC] broached the idea of disclosing [plaintiff's] HIV-positive status to potential trainees and asked [plaintiff] if he had any thoughts or ideas as to how this could be done.  In response, [plaintiff] suggested drawing up some sort of form that could be given to potential trainees.

"The end result of these meetings was an acknowledgement form, drafted by [the GC], which informed a potential trainee that his trainer was HIV-positive, but did not reveal [plaintiff's] identity.  Specifically, the form read: 'Trainee hereby specifically acknowledges that he/she has been fully informed that his/her Trainer suffers from a communicable health condition (HIV).  Trainee agrees to fully inform himself/herself on the condition (HIV), including avoidance of communication of the disease.  Trainee further agrees to keep confidential any and all information relating to Trainer's condition, except as required to protect the health and welfare of any person.'

"C.R. England contemplated that potential trainees would sign the acknowledgment form before they began training with [plaintiff].  [Plaintiff] never objected to the disclosure of his HIV status or to the use of the acknowledgment form."

The form was apparently used just once, for the first trainee who was assigned to the plaintiff.  This trainee signed the form without any problem, and went to work with the plaintiff.  Before setting out on this first training mission, the plaintiff asked to have "home time" between February 16 and 18, 2003, because of his need for "family time."  His request was denied on the ground that two-weeks advance notice was required for such a request.  Plaintiff acquiesced, responding, "OK, just when available."  He then went out on the road with his trainee for an assignment making a delivery in Omaha.  After dropping off their load, they were given several assignments that were then each cancelled before they could be executed, resulting in plaintiff and his trainee driving back and forth across the Omaha metropolitan area with increasing frustration, until finally plaintiff could not take it any longer and demanded that he be allowed to go home, as he could not wait two more weeks.  He dropped off the trainee to be picked up at the dispatcher's directions and drove his rented truck empty to his family home in Florida, turned down some new assignments, became uncommunicative, and failed to pay rental due on the truck. 

He was terminated and his debt on the truck was referred to a collection agency.  He complained to the EEOC, which ultimately sued on his behalf under the ADA, and he joined as an individual plaintiff asserting additional claims under the statute and common law.  He and the EEOC suffered summary judgment in the U.S. District Court in Utah, a result affirmed by the court of appeals in its May 3 decision.  There are lots of legal issues floating around in this case, but what makes it particularly interesting is how the court deals with the HIV confidentiality issues.

Both the EEOC and the plaintiff argued that the company violated the ADA non-discrimination requirement "by requiring potential trainees to sign an HIV-acknowledgment form before training with [plaintiff]" and that the company violated the ADA provision on confidentiality of medical information "by disclosing his HIV status — which they characterize as confidential medical information protected by [Section 102(d)]– to a potential trainee and other C.R. England employees."   In effect, argued EEOC, the company discriminated against plaintiff by condition his acceptance as a trainer on his willingness to have his HIV-status disclosed to potential trainees, thus limiting his employment opportunities and treating him differently from other employees because of his HIV status.  In addition, EEOC argued, this unlawfully breached his medical confidentiality.

In rejecting these claims, the court focused on the fact that the plaintiff "voluntarily" disclosed his HIV status to the HR manager (albeit at the time he asked that she keep the information confidential), that he suggested having the trainee sign some kind of acknowledgment form when confronted with the company's concerns about letting him be a trainer, and that he never raised any protest at the time about his HIV-status being disclosed to the company's GC or potential trainees.  To the court, apparently, acquiescence in company conduct that is potentially discriminatory renders the conduct legal.  Plaintiff wanted to be a trainer, and got the clear signal from the company that they would not allow him to be a trainer due to his HIV+ status unless that status was disclosed to potential trainees.  The court found this to be unproblematic in the context of this case, because plaintiff then became a trainer and the first (and only) trainee assigned to him signed the form without any protest.  As far as the court saw, this was all fine and dandy and plaintiff suffered no discrimination.  The court noted company testimony that at any given time they had a large number of potential trainees, so there was no evidence that this disclosure procedure would limit his future work as a trainer.

The court said there can be no unlawful discrimination in the absence of an "adverse employment action."  Here, since plaintiff acquiesced, there was no adverse employment action.  He was designated as a trainer, he was assigned a trainee, and he was sent out on an assignment.  The court also found that his ultimate discharge was not due to his HIV+ status, as the company had a good, non-discriminatory basis to fire him when he left his post, become uncommunicative, turned down new assignments and defaulted on his truck rental, all non-discriminatory reasons.  (I don't quibble with this finding at all.)

Of perhaps even more import is the court's interpretation of Section 102(d), the provision on medical information.  The 10th Circuit joined with the only other federal appeals court to rule on this point, the 11th Circuit in Cash v. Smith, 231 F.3d 1301 (11th Cir. 2000), to find that the medical confidentiality provisions of Section 102 do not apply to information that the employee voluntarily discloses to the employer.  According to the court, the confidentiality requirement applies only to information that the employer learns through medical examinations that it requires an applicant or employee to undergo, or that it conducts as part of its regular employee health program.  Since the statute specifically refers to those sources of information and mentions no others, the court says, it should not be construed to apply to others.

In so ruling, the court rejected the EEOC's published Enforcement Guidance, which states that the ADA "requires employers to treat any medical information obtained from a disability-related inquiry or medical examination … as well as any medical information voluntarily disclosed by an employee, as a confidential medical record."  The court points out that an EEOC Guidance does not have the legal status of statutory language or a regulation, and need not be followed by the court when the court finds it to be unsupported by the language of the statute. 

Thus, even though the statutory provision clearly signals that Congress was concerned that employees with disabilities have some control over the dissemination of their medical information by their employers, the 10th and 11th Circuits take the position, apparently, that employees who voluntarily disclose such information to their employer are not entitled to the protection otherwise envisaged by Congress.  This is a startlingly narrow and particularistic view, especially when, in both this case and Smith, the employee indicated when disclosing the information that they wanted it to be treated as confidential, foreclosing the argument that the employee had informed the employer that he was indifferent about who would learn the information.

I find it implausible that the court's results as to the HIV issues in this case discussed above are consistent with the purpose and policy of the ADA.  Premising employment in a particular position on disclosure of an employee's HIV status can be seen as, in itself, an adverse employment action, because it involves pressuring an employee who wants a particular position into making an important personal disclosure that he should not be required to make.  (There is no discussion by the court about whether this could be considered a bona fide occupational requirement for this job.)  Pointing out that the plaintiff went along with it should not make it OK.  If a plaintiff acquiesces in sex or race discrimination, that does not make the sex or race discrimination lawful, does it? 

The 2008 ADA amendments were supposed to take care of the various situations in which hostile courts had virtually gutted the effectiveness of the statute through their narrow and overly-literalistic interpretations.  The facts in this case occurred in 2003, so the 2008 amendments didn't apply.  But the 2008 amendments unfortunately did not respond to this loophole regarding medical confidentiality, so the language of 102(d) remains the same as it was before.  Perhaps a clarifying amendment incorporating the more expansive view articulated in the EEOC Guidance is needed to provide that medical information voluntarily disclosed in confidence to company officials should be subject to the same confidentiality requirement as information obtained through employer required/administered medical examinations.

 

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