No Disability? No Problem! Appeals Court Green-Lights ADA Claim for Back Pay

The cost of violating ADA rules about medical inquiries and exams can get potentially steep. It may include back pay – even if the employee never claimed to have a disability.

That may seem counterintuitive, to say the least – but here’s how it could (and did) play out in real life.

Employee’s Anger Caused Concern

In 1998, John Nawara started working for the Cook County (Illinois) Sheriff’s Office. In 2016, he was working there as a correctional officer.

It’s fair to say that Nawara did not always get along swimmingly with everyone at work. In 2016, he had multiple run-ins with his superior officer, and he also engaged in angry exchanges with an HR manager and an occupational health nurse.

Following those events, the HR manager and occupational nurse decided it was time for Nawara to undergo a fitness-for-duty medical examination.

Employee Placed on Paid Leave

The sheriff placed Nawara on paid leave and told him to sign and submit two medical authorization forms. Nawara refused to do so until he was placed on unpaid leave, finally relenting in August of 2017.

While he was on leave, Nawara sued the county under the ADA. Specifically, he said the employer violated the statute’s rules about medical examinations and inquiries by asking for his medical records and telling him he had to submit to a medical examination.

After the suit was filed, Nawara underwent the examination and was declared fit for duty. He returned to work as a correctional officer in late September of 2017.

A jury delivered good news and bad news for both sides: It decided that the county violated the ADA, but it awarded no damages. Nawara then asked the trial court to award him back pay and to restore his seniority.

The trial court said it could not award back pay because Nawara did not have a disability or perceived disability. However, it granted his request to restore his seniority.

Back Pay Dispute: Both Sides Appeal

Both sides appealed. The county sought to reverse the restoration of seniority, while Nawara argued that he was entitled to back pay.

The appeals court explained that the ADA bans employers from subjecting current employees to medical examinations unless those examinations are “job-related and consistent with business necessity.” (More on that later.)

It further explained that the statutory remedy provisions applicable to ADA claims are borrowed from Title VII, which pre-dates the ADA. Those provisions ban back pay awards if there was no discrimination based on one’s membership in a protected class, such as race, color, religion, sex or national origin. Because those provisions were written before the ADA was passed, they do not specifically mention disability.

The county argued that Nawara could not get back pay because there was no discrimination based on disability. In other words, it said there could be no disability discrimination without a disability, whether the disability was real or perceived.

EEOC Supports Employee on Back Pay Issue

Nawara countered with an argument that the EEOC supported with a brief. He said that a violation of the ADA’s statutory provision addressing medical examinations and inquiries counts as a form of disability discrimination.

The appeals court agreed. As a result, it decided that Nawara could get back pay for a violation of that provision.

The appeals court also rejected the county’s argument that the award of restored seniority should be reversed.

It reversed the lower court’s ruling that back pay was not available, and it remanded the case for further proceedings.

ADA Rules for Medical Exams and Inquiries

When it comes to medical examinations and inquiries, the ADA essentially lays out three sets of rules. One applies before a job offer is made; a second applies once an offer has been extended but before employment begins; and a third applies to current employees.

As a general rule, employers may not make medical inquiries or require applicants to submit to medical exams before a job offer is made. (There is a limited exception that did not apply in this case.)

Once an offer of employment has been extended, employers can ask medical questions and require medical examinations – but only if all entering employees in the same job category are subjected to them.

Finally, current employees can be subjected to medical inquiries and examinations if those inquiries and examinations are “job-related and consistent with business necessity.”

This standard is met when an employer reasonably believes that:

• The employee’s ability to perform essential job functions will be impaired by a medical condition, or
• The employee has a medical condition that poses a direct health or safety threat.

In addition, an employer may ask medical questions or require a medical examination in connection with a request for reasonable accommodation – but only if the employee’s disability is not known or obvious. For more detailed information, check out the EEOC’s guidance on medical inquiries and examinations.

Back Pay and Medical Inquiries: Key Takeaways

This case is as much about ADA rules on medical examinations and inquiries as it is about the relief that is available for violations of those rules.

Remember: At the pre-offer stage, medical inquiries and examinations are generally off the table. And before subjecting contingent employees or current employees to medical questions or examinations, make sure you are well within the boundaries of the applicable requirements.

Nawara v. Cook County, No. 22-1393 (7th Cir. 4/1/25).