Discouraging Voluntary Disclosure: EEOC v. C.R. England and Confidentiality Under the ADA

I. INTRODUCTION Under the Americans with Disabilities Act (ADA), employers who ask for disability information must keep it confidential.1 However, the statute is silent as to whether employers must also keep voluntary disclosures confidential.2 James Kingston had been working as a supervisor for The Ford Meter Box Company for three years before he was diagnosed with chronic obstructive pulmonary disease.3 This disease progressively made his breathing more difficult when he performed any sort of physical labor, even walking short distances.4 After his diagnosis, he disclosed his illness to the plant nurse, who gave him information about requesting medical leave.5 After his supervisor requested that Kingston spend more time on the production floor, Kingston responded by telling him about his condition, but he did not ask for any accommodations at that time.6 Because his disease continued to worsen in the year after his diagnosis, Kingston had a meeting with the plant nurse and his supervisor to discuss accommodations.7 He requested at this time that they keep his condition confidential.8 Although his supervisor told him at this time that Kingston could send his assistant to meetings that were located up a floor and across the plant, later conversations with his supervisor made him feel "compelled to go the meetings," so he did his best to attend rather than send his assistant.9 Other coworkers told him that his condition was a topic of conversation at a production meeting that he did not attend.10 When Kingston brought a lawsuit for disability discrimination, the court held that because he had told his supervisor and the plant nurse about his condition voluntarily before requesting reasonable accommodations, his medical information was not protected under the ADA.11 Thus, the court implied that employees who proactively tell employers about potential problems are not protected, but instead must wait until their job performance suffers, prompting their employers to initiate a disability inquiry or request medical documents.12 In a similar case, EEOC v. C.R. England,(TM) the Tenth Circuit held that the ADA does not protect an employee's disclosures to his supervisor. Rather than rewarding a proactive employee for telling his supervisor before his condition became a problem, C.R. England required the employee to divulge his medical condition to others and restricted his actions. This opinion will discourage voluntary discourse about disabilities between employees and employers, departing from Congress's intent in enacting the ADA. This Note argues that although the ADA does not directly address voluntary disclosures of medical information, the Tenth Circuit should have interpreted the ADA to protect employees' voluntary disclosures even where the employer has not made a special inquiry about the disability. Part II of this Note first discusses the applicable ADA provisions, their legislative history, and the Equal Employment Opportunity Commission's enforcement regulations and guidance. Next, Part III examines case law leading up to EEOC v. C.R. England, and discusses the difficulty in determining whether a disclosure is actually voluntary. As will be apparent from this discussion, the slight distinction between voluntary and involuntary disclosures does not justify the differences in outcome. Part IV discusses the facts and the Tenth Circuit's analysis in EEOC v. C.R. England. Part V argues that the Tenth Circuit's holding is contrary to Congress's intent in passing the ADA, contrary to the Equal Employment Opportunity Commission's guidance, and discourages voluntary employee disclosures through bad workplace policy that encourages both employees and employers to remain silent about disabilities, thus leading to a less productive disabled workforce. Part VI proposes two possible solutions: voluntary disclosures about possible disabilities could be treated like confidential medical records under the ADA; Or in the alternative, information could be disclosed only when "job-related and consistent with business necessity. …