Asking Specific Reason For Absence Risks ADA Violation

The retailer Dillard's had an attendance policy with provisions commonly found in other attendance policies. Under the policy employees were allowed up to three unexcused absences. However, a fourth unexcused absence required the discharge of the offending employee. For an absence to be "excused" under the policy, the employee was required to submit a physician's note that provided "the nature of the absence (such as migraine, high blood pressure, etc.)." Several former employees of Dillard's brought this policy to the attention of the Equal Employment Opportunity Commission ("EEOC"), and claimed that they were fired under the policy for presenting doctors' notes that did not specify the medical condition that caused their absences. The EEOC filed suit in the Southern District of California claiming that the attendance policy violated the Americans With Disabilities Act's ("ADA") prohibitions, at §12112(d)(4)(A), against making disability- related inquiries to applicants and employees in most circumstances. Dillard's moved for summary judgment and the District Court denied that motion. EEOC v. Dillard's Inc. (S.D. Calif. 2012).

The Dillard's opinion observed that there were two opposing lines of authority from the U.S. Courts of Appeals on whether an attendance policy can require a diagnosis specifying the medical reason for an absence before excusing it. In 2003, the U.S. Court of Appeals for the Second Circuit held that policies requiring disclosure of the medical condition violated the ADA. Conroy v. New York Department of Correctional Services, 333 F.3d 88. More recently, a decision of the Sixth Circuit reached the opposite result. Lee v. City of Columbus, 636 F.3d 245 (6th Cir. 2011).

The Second Circuit's Conroy decision gave great deference to the EEOC's published position on what constitutes a prohibited 'disability-related inquiry': "A 'disability-related inquiry' is a question that is likely to elicit information about a disability... ."1 However, more central to its decision was its application of that standard to the policy there in question. The employer in Conroy required employees to provide "a brief general diagnosis that is 'sufficiently informative as to allow [the employer] to make a determination concerning the employee's entitlement to leave or to evaluate the need to have an employee examined ... prior to returning to duty.'" The court found that the requirement to provide a general diagnosis "may tend to reveal" a...