Improper Disclosure of Medical Records Found

Improper Disclosure of Medical Records Found. Complainant previously worked for the Agency as a Customer Services Representative, but resigned after advising his Supervisor that he could not handle the detailed nature of the position due to his hearing impairment, tinnitus, learning disability and Attention Deficit Hyperactivity Disorder (ADHD). Several months later, he applied for a Forest Technician position and was selected. However, he only worked three days before separating from the Agency again, this time due to a dispute regarding whether he met the requirements for the position. After his separation, Complainant learned that his position classification had been "reduced." Complainant applied for a number of other positions within the Agency, but was not successful. In an effort to determine why he had not been selected, he retained Global Verification Services (Global) to contact his references. Global reported that when it contacted his former Customer Services Representative Supervisor, the Supervisor disclosed that Complainant had resigned, in part, due to his ADHD.

Complainant filed an EEO complaint alleging that the Agency made an unauthorized medical disclosure. After holding a hearing on the matter, the AJ concluded that, although Complainant's supervisor had disclosed his medical information while providing a reference, it was not a violation of the Rehabilitation Act. The AJ cited authority indicating that voluntarily disclosed medical documentation is not confidential, unless disclosed in an employee health program or medical examination. On appeal, the Commission concluded that the AJ erred as a matter of law. Citing EEOC guidance and relevant case law, the Commission noted that it has long recognized that an employer's confidentiality obligation extends to all medical information disclosed by an employee including information voluntarily disclosed. The Commission remanded the issues of compensatory damages and attorney's fees.Humphries v. Dep't of Agric., EEOC Appeal No. 0120083870 (June 12, 2012).