You Don’t Have to Have a Disability to Get Backpay Under Title I of the ADA

Congratulation to University of Connecticut for a tremendous win yesterday. Their coach now with a record 12 NCAA Division I titles. He already had most number of victories for a coach at the Division I level in basketball. Tonight, is the men’s final with Florida v. Houston.

Turning to the blog entry of the day, we look at the case of Nawara v. Cook County, here. The case asked the question whether backpay is an allowable remedy for a violation of the ADA that does not require a plaintiff to have a disability. As usual, the blog entry is divided in the categories and they are: facts; court’s reasoning that plaintiff can receive back pay for violations of the medical examination/disability related inquiries scheme regardless of whether plaintiff has a disability; court’s reasoning that the trial court was right to restore plaintiff’s seniority; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts (taken directly from the opinion)

John Nawara joined the Cook County Sheriff’s Office in 1998. He was working as a correctional officer in 2016 when he had a series of heated altercations with his superior officer, Superintendent Karen Jones-Hayes. Several weeks later, he engaged in another contentious interaction with Rebecca Reierson, a human resources manager, and Winifred Shelby, an occupational health nurse. As a result, Reierson and Shelby required Nawara to undergo a fitness-for-duty examination before returning to work, and the Sheriff placed Nawara on paid leave.

To initiate the examination process, Shelby instructed Nawara to submit two signed medical information authorization forms—one allowing medical providers to send his information to the examination company, and the other permitting the Sheriff’s Office to collect his information from medical providers to send to the company expediting the process. Despite repeated requests, Nawara refused to submit the executed forms, and the process stalled.

Nawara’s paid leave ended on April 25, 2017, and he was placed on unpaid leave, during which he worked other jobs. Nawara eventually decided to return to the Sheriff’s Office and provided the authorization forms in August 2017. After undergoing the fitness-for-duty examination, he was declared fit for duty and returned to work as a correctional officer on September 26, 2017. In September 2019, Nawara became a Cook County Sheriff’s police officer.

While on leave, Nawara filed this lawsuit, alleging that the Sheriff’s actions violated 42 U.S.C. § 12112(d)(4). After a trial, the jury agreed with Nawara that the examination requirement and related requests for medical records violated § 12112(d)(4)(A). That provision prohibits an employer from requiring a medical examination or inquiring about an employee’s disability status unless it is job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A). The jury, however, awarded no damages.

Nawara then filed a post-trial motion requesting equitable relief in the form of back pay and the restoration of his seniority. After reviewing the pertinent statutory provisions, the district court determined that a plaintiff, like Nawara, must have a disability or perceived disability for a violation of § 12112(d)(4) to constitute discrimination on account of disability. Nawara v. County of Cook, 570 F. Supp. 3d 594, 600-01 (N.D. Ill. 2021). And because the remedy provision applicable here, 42 U.S.C. § 2000e-5, bars a court from awarding back pay where an employee suffers an adverse employment action “for any reason other than discrimination” on account of disability, the court denied Nawara’s request and entered judgment accordingly. Id. (citing 42 U.S.C. § 2000e-5(g)(2)(A)). The court also declined to issue an order restoring his vacation days, holidays, sick days, and seniority.

Nawara subsequently moved to amend the judgment under Fed. R. Civ. P. 59(e), arguing that the district court had failed to fully evaluate his request for the restoration of his seniority. Upon closer examination, the district court agreed and granted Nawara’s request to restore his seniority based on the Supreme Court’s allowance of such relief in Franks v. Bowman Transportation Co., 424 U.S. 747, 770 (1976). See Nawara v. County of Cook, No. 17 C 2393, 2022 WL 3161805, at *2 (N.D. Ill. Feb. 15, 2022), corrected, 2022 WL 3161838 (N.D. Ill. July 29, 2022).

At that point, the Sheriff moved to amend the judgment restoring Nawara’s seniority. According to the Sheriff, the court had ignored a prior stipulation stating that seniority would be restored to Nawara “if the Court awards back pay.” In the Sheriff’s view, because the district court denied back pay, Nawara was not entitled to his seniority. The district court, however, disagreed and denied the Sheriff’s motion. Nawara, 2022 WL 3161838, at *3. Both sides appealed the district court’s rulings.

II

Court’s Reasoning That Plaintiff Can Receive Backpay for Violations of the Medical Examination/Disability Related Inquiries Scheme Regardless of Whether Plaintiff Has a Disability

1. 42 U.S.C. §12112 provides that no covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedure, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
2. 42 U.S.C. §12112(d) prohibits medical examinations and disability related inquiries of employees as to whether such an employee is an individual with the disability or as to the nature or severity of the disability (emphasis in opinion), unless such examination or inquiry is shown to be job-related and consistent with business necessity.
3. You do not have to be a person with a disability or even perceived as having a disability in order to be covered by the medical examination and disability related inquiry provisions.
4. 42 U.S.C. §12112(a) prohibits discrimination on the basis of disability with respect to the terms, conditions, and privileges of employment. 42 U.S.C. §12117(a) incorporates 42 U.S.C. §2000e-5 in its entirety. §2000e-5(g) of title VII of the Civil Rights addresses the availability of back pay. §2000e-5(g)(1) says that a court may order affirmative action as appropriate including but not limited to reinstatement or hiring of employees with or without backpay or other equitable relief as appropriate. However, the next subsection, §2000e-5(g)(2), says that backpay is not available if the individual was suspended or discharged for any reason other than discrimination (emphasis in opinion), on account of race, color, religion, sex, or national origin. Therefore, the most natural reading of §12117(a) requires adding discrimination on account of disability when considering remedies while leaving the remainder of §12117 intact.
5. Congress enacted the ADA to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.
6. 12112(a) prohibits discrimination on the basis of disability with respect to terms, condition, and privileges of employment. §12112(d)(1) explains that the prohibition against discrimination includes medical examination and inquiries. It doesn’t make sense that these two provisions apply only to disabled individuals for two reasons. First, such a reading renders §12112(d)(1) an unnecessary add-on because a medical examination and inquiry will always be a job application procedure or a term or condition of employment. Second, incorporating §12112(d) wholesale into §12112(a) is an odd fit because that would require the ADA claimant to have a disability or perceived disability while the former permits an individual to file a claim even though he may not. In other words, it makes little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability.
7. The better construction of §12112(d)(1) involves employing the nearest reasonable referent canon of construction, which means that §12112(a)’s prohibition on discriminating against a qualified individual on the basis of disability includes §12112(d)’s prohibition on requiring a medical examination or inquiry.
8. Other provisions of the ADA do not require a disability to allow someone to recover for violating the ADA. For example, the ADA also prohibits discrimination against those associating with a person with a disability regardless of whether that person has a disability.
9. Read together, §12112(a) and §12112(d)(1) define a violation of §12112(d)(4)(A) to constitute discrimination on the basis of disability under §12112(a). Accordingly, 12117(d) authorizes the plaintiff to recover backpay for the ADA violation.

III

Court’s Reasoning That the Trial Court Was Right to Restore Plaintiff’s Seniority

1. The Cook County Sheriff made no attempt to show that increasing plaintiff’s seniority would be useless to him as a police officer in the Sheriff’s office, a fact which is fatal to the Sheriff’s position.
2. The collective bargaining agreement in the Sheriff’s office suggests that the plaintiff could benefit from the restoration of the seniority in his current employment.

IV

Thoughts/Takeaways

1. When I talked to Khorri Atkinson of Bloomberg about this case (he was the one that brought this case to my attention), he mentioned to me that the defense side was looking at certain cases to see if the court’s argument could be countered. However, those cases suffer from some serious problems. First, they are all prior to the amendments to the ADA. Second, the concept of adverse action, as we discussed here, is rapidly evolving.
2. It is important to note that an employer that properly goes about the disability related inquiries and medical examinations scheme does not activate the regarded as prong of the ADA.
3. The opinion is published.
4. The opinion is well reasoned. As such, one has to wonder how the Supreme Court would decide this issue even given its current configuration. It will also be interesting to see how other circuits deal with this issue in light of a published opinion from a circuit that isn’t necessarily well-known for being disability centric. It is certainly possible that a circuit court split could occur down the road.
5. We discussed the medical examination and disability related inquiry scheme many times before, such as but not limited to here. This case illustrates how it is important to thoroughly understand that scheme. Training (a large part of my practice), by ADA knowledgeable individuals is always super important.
6. You don’t have to have a disability to benefit from certain provisions of the ADA, such as the medical examination and disability related inquiry scheme. Being discriminated against because you associate with a person with a disability is another example.
7. Violation of any provisions of Title I gets you the remedies afforded by Title I regardless of how a person gets covered under the ADA.
8. As a preventive law matter, it is helpful to have persons with disabilities involved in the process of analyzing when medical exams and disability related inquiries should be requested and what those exams and/or disability related inquiries are because of the frequency that people with disabilities have to deal with the issue.