The Americans with Disabilities Act prohibits employers from requiring employee medical examinations absent business necessity. The ADA provides a back pay remedy for violations, but limits these damages to discrimination on the basis of a disability. This week, the Seventh Circuit Court of Appeals determined that despite this language, a non-disabled plaintiff can collect back wages if they are subjected to an unlawful medical exam.

Nawara v. Cook County involved a correctional officer who engaged in heated altercations with his superiors and coworkers. The sheriff’s department placed him on unpaid leave pending his submitting to a fitness to return to duty mental health examination. The plaintiff at first resisted the request but eventually provided the requested medical information and was reinstated. He then sued, alleging that the reinstatement requirement was an unlawful medical exam under the ADA. A federal jury agreed, but the district court did not award back pay on the basis that the jury did not find that the plaintiff was disabled or perceived as disabled.

On appeal, the Seventh Circuit disagreed, remanding the case for consideration of appropriate damages. The court concluded that subjecting an employee to an unlawful medical examination is a form of disability discrimination even if the individual is not an ADA qualified individual with a disability. The opinion points out that in the absence of such interpretation, only applicants or employees with disabilities would have full protection from unlawful medical examinations, and that the prohibition against such exams is not limited to disabled individuals.

This interpretation appears to contradict the plain language of the ADA’s back wages provision. It results in non-disabled persons being able to collect damages that are limited to relief based on discrimination on the basis of a disability, with disability a defined ADA term. The Seventh Circuit concluded that Congress intended the ADA to define disability in different ways in the two statutory provisions.

This decision appears to be the first federal appellate court to directly address this issue. Other federal courts may decide to take a more direct approach toward interpreting the availability of ADA damages. 

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