In the brilliant 1993 movie The Fugitive, there is an iconic scene in which the wrongly accused Dr. Richard Kimble emphatically tells Deputy U.S. Marshal Samuel Gerard, “I didn’t kill my wife!” Gerard responds, “I don’t care!” In the recent case of Nawara v. Cook County, the U.S. Court of Appeals for the Seventh Circuit addressed a claim for disability discrimination under the Americans with Disabilities Act. The employer emphatically argued the plaintiff was not entitled to backpay damages because he never even alleged he had an actual or perceived disability. The Seventh Circuit, in finding in favor of the plaintiff, essentially responded, “I don’t care!” Let’s discuss.
Non-disabled employee sues after refusing medical “fitness-for-duty” exam
John Nawara was a correctional officer for the Cook County Sheriff’s Office. (Side note: The Fugitive also takes place in Cook County.) After a series of “heated altercations” with superior officers, the Sheriff’s Office ordered Nawara to undergo a medical “fitness-for-duty” exam. Nawara refused, and his employer placed him on a lengthy leave of absence, most of which was unpaid.
Nawara filed suit alleging the Sheriff’s Office violated 42 U.S.C. § 12112(d)(4)(A), an ADA provision prohibiting employers from requiring employees submit to a medical exam unless it “is shown to be job-related and consistent with a business necessity.” Notably, Nawara never alleged he had a disability or that the Sheriff’s Office perceived him as having disability. At trial, the jury found the Sheriff’s Office violated the prohibition against medical exams, but it did not award Nawara any backpay damages.
Nawara filed a post-trial motion requesting the district court do what the jury did not—award him backpay. This issue centered on a statutory provision regarding backpay as a remedy under the ADA. The ADA, incorporating language from Title VII, states a court shall not award backpay if the adverse action carried out against the plaintiff was “for any reason other than discrimination on account of” disability. The district court ruled the Sheriff’s Office did not place Nawara on unpaid leave “on account of” a disability because Nawara was not disabled or perceived as such. Accordingly, the district court interpreted the ADA to mean a plaintiff must have a disability, or the employer must perceive him as having a disability, to recover backpay damages.
At first glance, the district court’s rationale seems logical – a suspension cannot be “on account of” disability if the employee does not have an actual or perceived disability, right? However, the court’s logic did not hold up on appeal.
Appeals Court: Employer’s unlawful request constitutes discrimination under ADA
The Seventh Circuit acknowledged that the ADA states, “No [employer] shall discriminate against a qualified individual with a disability.” 42 U.S.C. § 12112(a). However, the court pointed out that the ADA provision on medical exams prohibits an employer from requiring “an employee” from undergoing a medical exam that is not job-related and consistent with a business necessity. 42 U.S.C. § 12112(d)(4)(A). This provision is not limited only to employees with an actual or perceived disability; it applies to all employees. Moreover, the ADA states that its “prohibition against discrimination . . . shall include medical examinations and inquiries.” 42 U.S.C. § 12112(d)(1). Thus, violating the prohibition against improper medical exams is in and of itself a form of disability discrimination.
The Seventh Circuit read the above statutory provisions in combination to mean an employer engages in “discrimination on the basis of disability” if it requires an employee to undergo a medical exam that is not job-related or consistent with a business discrimination even if the employee does not have an actual or perceived disability. Therefore, Nawara was the victim of an adverse action on the basis of disability, and entitled to backpay damages, even though he did not have an actual or perceived disability.
Important reminder about fitness-for-duty exams
It is unclear if other circuits are going to rule on this issue the same as the Seventh Circuit. Nonetheless, employers would be wise to always go through the process of determining if a fitness-for-duty exam is job-related or consistent with a business necessity before directing an employee to submit to such an exam. A failure to do so, followed by suspending or terminating an employee for refusing to submit to the exam, could result in an award of backpay even if the employee does not claim to have an actual or perceived disability.
Nawara v Cook County Municipality, No. 22-2451 (7th Cir. 2025)
