Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—7th Cir.: Nondisabled officer entitled to back pay as remedy for sheriff’s ADA violation, (Apr 2, 2025)

By Marjorie Johnson, J.D.

A jury found the sheriff violated the ADA’s prohibition against unlawful medical exams and inquiries, which itself constituted disability-based discrimination entitling the officer to back pay.

The Seventh Circuit held that a district court erred in denying back pay to a former correctional officer who prevailed at trial on his claim that the county and sheriff violated § 12112(d)(4) of the ADA by requiring that he undergo a fit-for-duty exam and respond to a medical inquiry into his mental health records after he had a series of heated altercations with other employees. Reversing and remanding for further proceedings, the Seventh Circuit emphasized that the ADA defines a violation of § 12112(d)(4) to be discrimination “on the basis of disability,” and rejected the district court’s flawed view that the provisions at issue merely add “medical examinations and inquiries” to the various ways that an employer might discriminate against a disabled individual (Nawara v. Cook County, Nos. 22-1393, 22-1430, 22-2395 & 22-2451 (7th Cir. Apr. 1, 2025)).

Exam ordered after altercations. The officer joined the Cook County Sheriff’s Office in 1998. While he was working as a correctional officer in 2016, he had a series of heated altercations with his superior, an HR manager and an occupational health nurse. As a result, the sheriff’s office ordered him to undergo a fitness-for-duty (FFD) examination before returning to work and required that he sign two medical information release forms. He resisted at first and was placed on unpaid leave. He eventually relented, underwent the exam, and signed the medical release forms, and was ultimately declared fit for duty and returned to work.

Lawsuit. Meanwhile, however, he brought this lawsuit against the county and the sheriff (“the employer”) alleging that the exam requirement and inquiry into his mental health violated the ADA. After a trial, the jury agreed and found that the employer violated § 12112(d)(4)(A), which prohibits an employer from requiring a medical examination or inquiring about an employee’s disability status unless it is job-related and consistent with business necessity. However, the jury declined to award any damages.

Court denies back pay, restores seniority. The officer filed a post-trial motion requesting an award of back pay as well as restoration of his seniority. The court ultimately ordered that his seniority be restored but held that the employer’s violation of his rights under § 12112(d)(4) could not support an award of back pay. In particular, the court determined that a plaintiff must have a disability or perceived disability for a violation of § 2112(d)(4) to constitute discrimination on account of disability. And because the remedy provision applicable here, 42 U.S.C. § 2000e–5, bars a court from awarding back pay where an employee suffers an adverse employment action “for any reason other than discrimination” on account of disability, the court denied his request and entered judgment accordingly. Both parties appealed.

Medical exam provision. The Seventh Circuit started its analysis by reviewing the statutory provision giving rise to his claim—42 U.S.C. § 12112. Subsection (a) provides broadly that: “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” Later in subsection (d)(1), the statute provides that “[t]he prohibition against discrimination as referred to in subsection (a) shall include medical examinations and inquiries.” Subsection (d)(4)(A) provides that, “[an employer] shall not require a medical examination and shall not make inquiries of an employee as to whether such an employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” (Emphasis added). The Seventh Circuit has held that an employee may invoke subsection (d)(4)(A) even if he is not disabled or perceived to be disabled, as was the case here.

Enforcement provision. The ADA’s enforcement provision, § 12117, incorporates the remedies set forth in Title VII, of which subsection 2000e–5(g) addresses the availability of back pay. While subsection 5(g)(1) begins with the general rule that a court may order reinstatement or hiring of employees “with or without back pay,” subsection 5(g)(2) states that “[n]o order of the court shall require … the payment to [a plaintiff] of any back pay, if such individual was … suspended, … or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin.” (Emphasis added).

Back pay available to ADA claimants. With these provisions in mind, the Seventh Circuit squarely rejected the officer’s first argument—that because § 2000e–5(g)(2) does not mention “disability” the provision applies only to cases involving Title VII claims and not ADA claims. This construction “would lead to nonsensical results” as it would mean that “no ADA claimant would be able to recover back pay even if he or she were able to prove discrimination due to disability.” Therefore, the district court correctly found that in the context of the ADA, § 2000e–5(g)(2) precludes back pay when an employer acts unlawfully for any reason other than “discrimination on account of disability.”

Violation of medical exam provision is discrimination. However, the Seventh Circuit agreed with the officer that his employer’s violation of § 12112(d)(4)(a) constituted discrimination on account of disability even if he did not have an actual or perceived disability, rejecting the district court’s flawed view that the provisions at issue merely add “medical examinations and inquiries” to the various ways that an employer might discriminate against a disabled individual. First, such a reading “would render § 12112(d)(1) surplusage because a medical examination and inquiry will always be a job application procedure or a term or condition of employment,” explained the Seventh Circuit. After carefully analyzing the language in the provisions, the appeals court concluded that, “read together, § 12112(a) and § 12112(d)(1) define a violation of § 12112(d)(4)(A) to constitute discrimination on the basis of disability under § 12112(a),” and as such § 12117(d) authorized the officer to recover back pay.

Restoration of seniority. In addition, the employer failed to convince the Seventh Circuit to vacate the award of restored seniority as moot since, starting in 2019, the officer ceased to work as a correctional officer and became a police officer in a separate department. Though he joined a different union result in his seniority clock being reset for police assignments, the relevant collective bargaining agreements provided that in the event of a tie in seniority in the police department, his prior seniority would be used to break the tie. Thus, the restoration of his seniority could still provide a benefit to him.

The case is Nos. 22-1393, 22-1430, 22-2395 & 22-2451.

Judge: Lee, J.

Attorneys: Richard Forest Linden (Law Offices of Richard Linden) for John Nawara. Megan Honingford, Office of the Cook County State's Attorney, for Cook County Municipality.

Companies: Cook County Municipality

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