Circuits Affirm Right of Non-Disabled Individuals to Sue for Improper Medical Inquiry

The 11th Circuit considered congressional intent in concluding that the Americans With Disabilities Act (ADA) gives non-disabled individuals a private right of action for improper pre-employment medical inquiries.

"Congress sought to prevent employers from using pre-employment medical inquiries 'to exclude applicants with disabilities--particularly those with so-called hidden disabilities such as epilepsy, emotional illness, heart disease and cancer--before their ability to perform the job was even evaluated,'" Judge Eugene Siler, Jr. wrote, quoting from the ADA.

Allowing non-disabled applicants to sue for improper medical inquiry does not weaken the law; rather it serves to "enhance and enforce Congress' prohibition" against using those inquiries to ferret out disability-related information, Siler wrote.

In allowing such private rights of action, the court joins five of its sister circuit courts - the 2nd, 7th, 8th, 9th, and 10th. As for the other circuits, "they just haven't examined the issue," says Marcia McCormick, an associate professor in St. Louis University School of Law. "There isn't a split ... There's just a silence."

Following are previous circuit court decisions regarding private rights of action under the ADA:

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