Schnader Harrison Segal & Lewis LLP
Schnader
attorneys at law
Schnader Harrison Segal & Lewis LLP
Schnader
attorneys at law
Schnader Harrison Segal & Lewis LLP
Schnader
attorneys at law
New York
PeNNsYlvaNia
CaliforNia
washiNgtoN, D.C.
New JerseY
DelawareNew York
PeNNsYlvaNia
CaliforNia
washiNgtoN, D.C.
New JerseY
DelawareNew York
PeNNsYlvaNia
CaliforNia
washiNgtoN, D.C.
New JerseY
Delaware
April
2012
(continued on page 2)(continued on page 2)(continued on page 2)
Asking Specific Reason for Absence
Risks ADA Violation
By Scott J. Wenner
The retailer Dillard’s had an attendance policy with
provisions commonly found in other attendance poli-
cies. Under the policy employees were allowed up to
three unexcused absences. However, a fourth unex-
cused absence required the discharge of the offending
employee. For an absence to be “excused” under the
policy, the employee was required to submit a physi-
cian’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
red under the policy for presenting doctors’ notes that
did not specify the medical condition that caused their
absences. The EEOC led suit in the Southern District
of California claiming that the attendance policy vio-
lated the Americans With Disabilities Act’s (“ADA”)
prohibitions, at §12112(d)(4)(A), against making dis-
ability-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 op-
posing lines of authority from the U.S. Courts of Ap-
peals 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 dis-
closure of the medical condition violated the ADA.
Conroy v. New York Department of Correctional Ser-
vices, 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 def-
erence to the EEOC’s published position on what con-
stitutes 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 gen-
eral diagnosis that is ‘sufciently informative as to al-
low [the employer] to make a determination concern-
ing the employee’s entitlement to leave or to evaluate
the need to have an employee examined … prior to re-
turning to duty.’” The court found that the requirement
to provide a general diagnosis “may tend to reveal” a
disability. Therefore, it was closer to an inquiry that
could elicit information about a disability than it was
to permissible questions about the employee’s gen-
eral well-being or whether they can perform job func-
tions.
2
It thus was prohibited under the ADA unless
justied by the rigorous “business necessity” defense
which, it found, was not applicable in that case.
In Lee, the Sixth Circuit examined a similar policy3
1. Questions and Answers: Enforcement Guidance on Dis-
ability-Related Inquiries and Medical Examinations of
Employees Under the Americans with Disabilities Act
(ADA), (EEOC, July 27, 2000), http://www.eeoc.gov/
policy/docs/qanda-inquiries.html.
2. It also observed that even where the general diagnosis
does not disclose a disability, it could give rise to the
perception of a disability, and discrimination on that ba-
sis also is impermissible.
3. Lee was brought under the Rehabilitation Act, a law
with similar prohibitions, but which has a somewhat
higher threshold of conduct to establish a violation.
The grounds for the Court’s decision, however, did not
implicate this distinction and were largely based on its
disagreement with the Second Circuit’s Conroy analysis
under the ADA.
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