United States District Court, S.D. Indiana, Indianapolis Division
DAVID J. PRYZBYLSKI, R. ANTHONY PRATHER BARNES & THORNBURG LLP (INDIANAPOLIS)
AARIKA D. MACK-BROWN, LAURIE A. YOUNG, MICHELLE EISELE, MILES EZEKIEL SHULTZ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
SARAH EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT
This cause is before the Court on the parties’ cross motions for summary judgment: Plaintiff Equal Employment Opportunity Commission’s motion for partial summary judgment on liability under 42 U.S.C. § 12112(d)(2) [Docket No. 106], filed on October 6, 2014; and Defendant Celadon Trucking Services, Inc.’s motion for summary judgment on all claims [Docket No. 130], filed on November 6, 2014. For the reasons set forth below, Plaintiff’s motion is GRANTED in part and DENIED in part, and Defendant’s motion is GRANTED in part and DENIED in part.
Defendant Celadon Trucking Services, Inc. (“Celadon”) is an Indiana-based interstate motor carrier company whose drivers operate throughout the United States, Mexico, and Canada. Docket No. 108-1 (Glore Dep.), Ex. 20. As an interstate carrier, Celadon is subject to various Department of Transportation (DOT) regulations, including those prescribing health and safety standards for its drivers. Among those requirements are that all drivers pass DOT-sanctioned medical examinations and otherwise possess certain minimum medical qualifications. See 49 C.F.R. §§ 391.41 et seq. As a firm with more than 15 employees, Celadon is also a “covered entity” subject to the protections of Title I of the Americans with Disabilities Act (ADA). 42 U.S.C. §§ 12111–12117.
Celadon’s job application process consists of several stages. Starting in 2008 and continuing at least through 2011, that process began with an application form that, among other things, asked applicants to answer the following three “medical review” questions:
1. Have you ever been injured, hospitalized, had surgery, been treated by a doctor on an outpatient basis, currently being treated by a doctor [sic], or are you currently on any medications?
2. Have you ever been diagnosed with sleep apnea? If yes, you will need to obtain a sleep apnea form and be released by our medical department prior to attending orientation.
3. Have you ever had a heart attack, heart bypass surgery, or have had angioplasty (balloon) or stent placed? If yes, you will need to have a release from your physician and be cleared by our medical department prior to attending orientation.
Docket No. 132-2 (Chesterman Decl.), Ex. C. at 3–4; Docket No. 114-1 (Swartzlander Dep., pt. 2), Ex. 3. According to Recruiting Director David Chesterman, Celadon asked the three preliminary health questions with an eye towards the efficiency of the orientation process: “Knowing the applicants would have to disclose and/or bring releases for records pertaining to their medical histories in order to pass the DOT physical and receive a required DOT certificate, Celadon asked applicants [the three questions] prior to arrival . . . so that applicants would not needlessly be sent home from orientation for failing to bring the required information.” Chesterman Decl. at ¶ 7. Applicants who answered “yes” to any of these questions and disclosed medical issues were provided with a Celadon medical release form and were instructed to return completed medical releases directly to the applicant’s assigned recruiter. Docket No. 108-5 (Austin Dep.) at 50–52; Docket No. 108-6 (Brinkley Dep.) at 52–55. No applicants had received job offers by this point in the process. Chesterman Dep. 128; Swartzlander Dep. 71.
Once a prospective driver contacted Celadon, personnel in the company’s recruiting department forwarded the applicant’s information to a Celadon-employed recruiter, who performed background checks and evaluated applicants’ basic qualifications. Those applicants who meet initial suitability criteria, such as an acceptable driver history and background check result, were invited to attend the next step in the process-the driver orientation program, which was conducted in Indianapolis at the company’s expense. Docket No. 116-1 (Chesterman Dep.) at 44–61. Until at least 2010, as part of an “orientation check-in, ” recruiters called prospective drivers before their arrival and went over their responses to the application form, again asking them the three questions about their medical histories and prompting them to obtain release forms if necessary. Brinkley Dep. 43–60; Docket No. 108-7 (Johnson Dep.) at 32–40, Exs. 3–5. Despite the connotations of the term “orientation, ” attendees at Celadon’s driver orientation program had not received any offer of employment, even a conditional one. Swartzlander Dep. 69–71 (stating that Celadon recruiters told applicants only that they had an “offer to attend orientation” at this stage); Austin Dep. 88–89. On arriving at driver orientation, drivers received the following “pre-employment acknowledgment letter, ” calling for their signature under the following statement:
I, [name], understand that the Orientation Program is part of the pre-employment process conducted by Celadon. I further understand that my status is “candidate for employment” and I will not become an “employee” until I have, 1.) successfully completed the Orientation Program and 2.) accepted dispatch.
Additionally, I agree that attending the Orientation Program does not constitute a binding agreement between Celadon and me that will necessarily result in my employment with Celadon. I also understand that an employer/employee relationship will not exist if the above conditions are not met.
Chesterman Dep., Ex. 9; Docket No. 108-2 (Osborn Dep.), Ex. 9.
The orientation program lasted three to four days. On the first day, applicants underwent physical examinations designed to ensure that they met DOT-mandated driver health standards. Chesterman Dep. 182–185. The exams were conducted by staff from Community Health Network, who issued applicants a DOT medical certificate upon passing the medical examination. Chesterman Decl. at ¶ 10; Exs. D, E, F; Docket No. 140-1 (Hon Decl., pt. 1) at ¶¶ 2–8. Celadon required all applicants for driver positions to pass a DOT physical and receive a certification from Community Health in order to receive a job offer. Hon Decl. at ¶ 9. The orientation program included several other steps, the completion of which were all prerequisites to receiving a job offer: a road driving test, a HAZMAT film and test, a truck maintenance course, a logbook procedures class and examination, and-depending on the applicant’s driver record-a defensive driving course. Osborn Dep. 46–48, 107–109, Ex. 9; Docket No. 108-4 (Perkins Dep.) at 36–38, Ex. 11. See generally Chesterman Dep. 182–196. The company made an employment offer only after the orientation manager had certified that an applicant had completed orientation and the company’s safety department had verified that the applicant’s application file was complete. Chesterman Dep. 70–71, 106–107, 178–179, Ex. 10; Osborn Dep. 107–109; Perkins Dep. 36–38; Docket No. 108-3 (Steele Dep.) at 33–34, 51–56. According to Orientation Director Jessica Perkins, in 2013 Celadon began making conditional offers of employment to applicants at the beginning of orientation; employment with the company remains contingent on completing all of the orientation program’s requirements, including the DOT physical exam. Perkins Dep. 30–32. The testimony of other Celadon officials, however, suggests that the company still withholds offers of any type until the conclusion of orientation. Chesterman Dep. 127–128; Osborn Dep. 46–48.
The EEOC brings this suit on behalf of two groups of applicants who sought jobs at Celadon during the period when the procedures described above were in place. The first group consists of 23 unsuccessful applicants, 22 of whom never received certifications that they had passed the required DOT physical and thus never received employment offers, and the last of whom-Jermaine Smith-passed his DOT physical but did not provide a required medical release form and was denied an employment offer on that basis. See Chesterman Decl. at ¶¶ 12– 15; Hon Decl. at ¶¶ 4–8; Docket No. 132-6 (Wilcher Dep.) at 101–103. The second group, a subset of the first, consists of six applicants-David Gasser, Stephen Hudetts, William Smith, Harvey Landry, Patricia Kimbrell, and Haywood Glaze-who were likewise refused employment by Celadon after Community Health personnel did not certify them as having passed their DOT physical exams. Docket No. 132-1 (Pryzbylski Decl.) at ¶ 5. The EEOC claims that these six individuals were not only subject to Celadon’s policy of pre-hire medical inquiries and examinations, but were also victims of intentional employment discrimination on the basis of real or perceived disabilities.
Class member Anthony Stinard filed an EEOC charge of discrimination on April 29, 2009; additional class members filed charges thereafter. Docket No. 118-3. The EEOC issued letters of determination regarding these charges in April 2011, Docket No. 118-4, and it filed the present lawsuit on February 29, 2012.
Preliminary Evidentiary Dispute
As an initial matter, Celadon argues that seven of the exhibits relied upon by the EEOC in its partial motion for summary judgment are not authenticated documents and are thus inadmissible. Def.’s Br. 44. In doing so, it relies upon the general rule that to be admissible, documents that a party seeks to offer into evidence must be “authenticated by and attached to an affidavit that meets the requirements of [Fed. R. Civ. Pro.] 56(e)[, ] and the affiant must be a person through whom the exhibits could be admitted into evidence.” Scott v. Edinburg, 346 F.3d 752, 760 n.7 (7th Cir. 2003) (quoting 10A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2722, at 379–390, 382–384 (3d ed. 1998)). “There is no single way to authenticate evidence, ” however, and a document’s “distinctive characteristics, taken in conjunction with circumstances, ” can permit a finding that it is authentic. Miller v. Whipker, 2004 WL 1622212, at *4 (S.D. Ind. Mar. 31, 2004) (citing United States v. Holmquist, 36 F.3d 154, 167 (1st Cir. 1994)). Under Federal Rule of Evidence 901, “all that is required is a ‘prima facie showing of genuineness.’” Id. (quoting United States v. Harvey, 117 F.3d 1044, 1049 (7th Cir. 1997)).
We agree with the EEOC that six of the seven exhibits are admissible, for one of two reasons. First, Celadon produced four of these documents-Plaintiff’s Exhibits 2, 3, 12, and 17-in discovery, thereby implicitly authenticating them. See Miller, 2004 WL 1622212, at *6 (citing United States v. Lawrence, 934 F.2d 868, 871 (7th Cir. 1991)). Two more documents- Plaintiff’s Exhibits 15 and 16-are self-authenticating under Federal Rule of Evidence 902(1). Both display the seal of the EEOC, an agency of the United States, and are signed by the agency’s district director. Docket Nos. 118-3, 118-4. See Alexander v. CareSource, 576 F.3d 551, 561 (6th Cir. 2009) (holding that EEOC documents signed by a team leader or agency director and bearing the agency’s seal are self-authenticating). As for Plaintiff’s Exhibit 14 [Docket No. 118-2], which consists of employment history information (“DAC reports”) purportedly submitted by Celadon to HireRight, an outside firm, sufficient indicia of authenticity are absent. The EEOC has submitted the sworn declaration of paralegal Lectric Chandler stating that she requested the forms from HireRight on behalf of the EEOC; attached to the declaration are HireRight’s letters in response to the request. Docket No. 145-11 (Chandler Decl.) at ¶¶ 4–7. The EEOC’s paralegal, however, is not in a position to authenticate the business records of a third-party organization, nor has the EEOC offered any other affidavit or means of authenticating these documents. Cf. Fed. R. Evid. 803(6)(D), 901. We will therefore not consider Plaintiff’s Exhibit 14 in ruling on the motions for summary judgment.
We consider Celadon’s more specific challenges to the authenticity or admissibility of certain exhibits as necessary in the main body of our discussion.
Standard of Review
Federal Rule of Civil Procedure 56 provides that summary judgment should be granted when the record evidence shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986). The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material fact exist, the court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in favor of the non-moving party. See Id. at 255. However, neither the “mere existence of some alleged factual dispute between the parties, ” id., 477 U.S. at 247, nor the existence of “some metaphysical doubt as to the material facts, ” Matsushita, 475 U.S. at 586, will defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).
The EEOC and Celadon have both filed motions for summary judgment. The EEOC seeks summary judgment in its favor on the issue of Celadon’s liability for unlawful pre-hire inquiries and examinations in violation of 42 U.S.C. § 12112(d)(2), while Celadon moves for summary judgment in its favor on both of the EEOC’s claims-unlawful pre-hire inquiries and failure to hire. Celadon also seeks summary judgment on the basis of the EEOC’s failure to conciliate and on the question of the availability of punitive damages. We address these issues in turn.
I. Pre-Hire Inquiries and Medical Examinations
The EEOC’s first claim asserts that Celadon violated the Americans with Disabilities Act (ADA) by engaging in a “pattern or practice” of discrimination. Pl.’s Br. 11. Section 107(a) of the ADA, 42 U.S.C. § 12117(a), provides a cause of action for pattern-or-practice claims, incorporating by reference Section 707 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–6. As the Supreme Court has explained, “[t]he plaintiff in a pattern-or-practice suit is the Government, and its initial burden is to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 360 (1977). See also Puffer v. Allstate Ins. Co., 675 F.3d 709, 716–717 (7th Cir. 2012). Thus, at the liability stage of the dispute, the EEOC need not prove that “each person for whom it will ultimately seek relief was a victim of the employer’s discriminatory policy. Its burden is to establish a prima facie case that such a policy existed.” Int’l Bhd. of Teamsters, 431 U.S. at 360. The burden then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the Government’s proof is either “inaccurate or insignificant.” Id.
Here, the EEOC alleges that Celadon regularly and purposefully violated the ADA’s prohibitions on pre-hire medical inquiries and physical examinations related to disability. Section 102(d)(2) of the statute provides that, as a general rule, “a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.” 42 U.S.C. § 12112(d)(2)(A). Two caveats apply. First, covered entities may make pre-employment inquiries “into the ability of an applicant to perform job-related functions.” Id. at § 12112(d)(2)(B).Second, covered employers may require prospective employees to undergo medical examinations after they have been hired and before they commence work, if certain enumerated requirements are met. Id. at § 12112(d)(3). The EEOC can thus prevail on its pattern-or-practice claim if it can show, by a preponderance of the evidence, that Celadon ran afoul of this statutory prohibition, and that doing so “was the company’s standard operating procedure-the regular rather than the unusual practice.” Puffer, 675 F.3d at 716 (quoting Int’l Brotherhood of Teamsters, 431 U.S. at 336). See also EEOC v. Northwest Airlines, 216 F.Supp.2d 935, 938 (D. Minn. 2002) (affirming that EEOC is entitled to seek class-wide relief-without being bound by Rule 23-through its ADA enforcement powers, which in turn incorporate those of Title VII of the Civil Rights Act).
Because both parties seek summary judgment on this claim, we first will determine whether Plaintiff has made out a prima facie case that Celadon engaged in pre-offer medical inquiries and/or physical examinations. This requires us to resolve two interpretive disputes: whether a claim under § 12112(d)(2) requires that the EEOC show that class members were “otherwise qualified” individuals with disabilities, and whether the EEOC must show the existence of an “injury in fact” in order to state a claim. We then shall address Celadon’s defenses: that the medical inquiries and examinations were “job-related” or were mandated by Department of Transportation regulations and thus permissible; and that four of the class members are barred from obtaining relief because they failed to disclose their claims against Celadon in their individual bankruptcy proceedings.
A. The EEOC’s prima facie case
The EEOC alleges that, as part of its standard hiring process for drivers, at least during the years 2008–2012, Celadon made medical inquiries of its applicants and required them to submit to physical examinations before they were extended even conditional offers of employment. The company’s written application form contained three health-related questions- the first of which was exceptionally broad, requiring applicants to disclose if they had ever “been injured, hospitalized, had surgery, been treated by a doctor on an outpatient basis, [were] currently being treated by a doctor [sic], or [were] currently on any medications.” Chesterman Decl., Ex. C. at 3–4; Swartzlander Dep., pt. 2, Ex. 3. Two additional questions were narrower, focusing on sleep apnea and heart conditions. Id.
Leaving aside for the moment the question of business-relatedness, these application questions appear to be the type of open-ended inquiries that Congress sought to restrict by enacting 42 U.S.C. § 12112(d)(2). The purpose of the provision is to ensure that a prospective employee’s hidden disabilities stay hidden at the pre-hire stage-which in turn helps prevent employers from using the disclosed information to screen out applicants whose hiring would entail providing an accommodation. See Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 677 (1st Cir. 1995) (citing H.R. Rep. No. 485 (Pt. 2), 101st Cong., 2d Sess., at 73, reprinted in 1990 U.S.C.C.A.N. vol. 4, Leg. Hist. 303, 355)). The EEOC’s enforcement guidance for the statute explains that medical inquiries that are likely to elicit answers relating to disabilities are prohibited, and a blanket query seeking disclosure of any and all medical conditions runs afoul of this prohibition: “Certainly, an employer may not ask a broad question about impairments that is likely to elicit information about disability, such as ‘What impairments do you have?’” EEOC, ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (“EEOC Enforcement Guidance”) (EEOC Notice 915-002) (Oct. 10, 1995) at 8.See also Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1215–1216 (11th Cir. 2010) (discussing the “likely to elicit” standard and the enforcement guidance). Similarly, while not all questions about physical impairments are likely to elicit answers related to disabilities, open-ended inquiries about heart conditions and sleep apnea sweep broadly enough that they, too, fall within the statute’s ambit. Cf. EEOC Enforcement Guidance at 8; Lee v. City of Columbus, 636 F.3d 245, 254 (6th Cir. 2011) (“Obviously, asking an employee whether he is taking prescription drugs or medication, or questions seeking information about illnesses, mental conditions, or other impairments [an employee] has or had in the past[, ] trigger[s] the ADA’s . . . protections.”) (internal citations omitted).
Moreover, Celadon acknowledges that it required-and still requires-all applicants for long-haul truck driver positions to “pass a physical medical exam that meets requirements prescribed by the DOT.” Def’s Br. 5 (citing 49 C.F.R. § 391.43 (2014)). The Department of Transportation’s regulations do indeed prescribe that long-haul truck drivers must undergo a physical examination conducted by a certified medical professional; the examinations conducted by Community Health personnel on Celadon’s behalf were designed to comply with this requirement, Def’s Br. 5, and they accordingly involved comprehensive physical examination of applicants, coupled with a number of diagnostic tests, including blood pressure tests, glucose screening, and eye and ear tests. Docket No. 108-8 (Fleming Dep.) at 7, 27-28, Ex. 51. We shall shortly address the question of whether Celadon’s DOT physicals were permissible, but there is no doubt that they are “medical examinations” within the meaning of 42 U.S.C. § 12112(d)(2). See EEOC Enforcement Guidance, “What is a Medical Examination” at 13 (discussing factors relevant to distinguishing a medical examination from permissible tests of particular job skills).
Celadon does not deny that it conducted pre-employment inquiries and medical examinations. Rather, in addition to its defenses regarding the permissibility of the inquiries and examinations under the ADA, Celadon contends that the statute is inapplicable to the EEOC’s claim. Celadon advances two arguments: that the prohibition set forth in 42 U.S.C. § 12112(d)(2) applies only to disabled applicants who are “otherwise qualified” for the position in question, and that a plaintiff must provide evidence that it suffered an “injury in fact” in order to state a claim. We reject both of these arguments.
1. Does 42 U.S.C. § 12112(d)(2) apply only to “qualified” job applicants?
Celadon contends that the prohibitions on discriminatory conduct contained in Section 102(d)(2) of the ADA shield only “qualified individuals”-those who, “with or without reasonable accommodation, can perform the essential functions of the employment position” in question. Def.’s Br. 26. See also 42 U.S.C. § 12111(8) (defining “qualified individual”). The ADA does not override the safety-related requirements otherwise imposed by federal law. 29 C.F.R. § 1630.15(e) (2014) (“It may be a defense to a charge of discrimination under this part [of the ADA] that a challenged action is required or necessitated by another Federal law or regulation.”). Because DOT regulations require that a long-haul truck driver receive a medical examination and certification before he or she may perform the job, 49 C.F.R. § 391.43, an applicant is therefore not “otherwise qualified” if he or she is not medically eligible to receive DOT-approved certification. See Bay v. Cassens Transport Co., 212 F.3d 969, 974 (7th Cir. 2000) (“It was not until Dr. Pieper determined that Bay was qualified to drive pursuant to DOT standards that he was ‘otherwise qualified’ under the ADA.”) (citing Prado v. Continental Air Transp. Co., 982 F.Supp. 1304, 1307 (N.D. Ill. 1997)); Cole v. Roadway Express, Inc., 218 F.Supp.2d 350, 356 (W.D.N.Y. 2002) (“Once medical certification is denied . . . the transport company may not hire the applicant to drive a truck on public roads without violating DOT regulations.”) (emphasis added). Pointing to the fact that none of the 23 class members received DOT certifications from Community Health during orientation, see Hon Decl. at ¶¶ 4–8, Celadon argues that the statute does not apply.
Celadon’s interpretation springs from two features of Section 102’s language. The first is Section 102(a), the provision’s “general rule” against discrimination, which states as follows: “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures . . . and other terms conditions, and privileges of employment.” 42 U.S.C. § 12112(a) (emphasis added). Second, the subsection on medical examinations and inquiries opens with this statement: “(1) In general – The prohibition against discrimination as referred to in subsection (a) of this section shall include medical examinations and inquiries.” Id. at § 12112(d)(1). Paragraph two of the same subsection goes on to prohibit pre-employment examinations or inquiries of “job applicants.” Id. at § 12112(d)(2)(A). On this basis, Celadon reasons that Section 102(d)’s prohibition on pre-employment inquiries and examinations implicitly incorporates the definitional limitation announced by Section 102(a)-in other words, that the only “job applicants” who may complain of improper inquiries or examinations are the “qualified individuals” that the broader statute aims to protect from discrimination.
This view finds some support in the federal courts, though it appears to be the minority position. See Bone v. City of Louisville, 215 F.3d 1325, at *3 (6th Cir. 2000) (unpublished table decision) (“Since Bone has no disability, he is not eligible for the protection afforded by 42 U.S.C. § 1212(d)(2) [sic].”). Armstrong v. Turner Indus., 950 F.Supp. 162, 167 (M.D. La. 1996), aff’d, 141 F.3d 554 (5th Cir. 1998) (“Considering the placement and purpose of the ADA restrictions on medical inquiries of job applicants found in § 12112(d) in the context of the entire statute, the most reasonable interpretation is that if a separate claim can be brought for violation of this section, it must be brought by a qualified individual with a disability . . . .”).
Celadon leans, in particular, on a district court opinion from within the Seventh Circuit endorsing its preferred restrictive view of Section 102(d). In Prado v. Continental Air Transport Co., 982 F.Supp. 1304 (N.D. Ill. 1997), the Northern District of Illinois granted summary judgment to a trucking company against a job applicant’s claim that the company violated the ADA by subjecting him to a physical examination and refusing to hire him after he failed it. 982 F.Supp. at 1305–1306. The court did not engage in a detailed analysis of Section 102(d) and its interaction with the rest of the ADA; rather, it opened its discussion with the generalized observation that, “[t]o successfully maintain an action under the ADA, Prado must make the predicate showing that he was a ‘qualified individual’ for the position of driver.” Id. at 1306 (citations omitted). Because the DOT requires long-haul truck drivers to obtain medical certification, the court found that an applicant who failed the DOT-mandated examination was not “qualified” and could not bring any claim under the ADA. Id. at 1306–1307. In a footnote, the court rejected the plaintiff’s argument that Section 102(d) constitutes a per se prohibition on pre-hire examinations; it reasoned that such a reading of the statute would “gut” the ADA’s recognition that the implementation of job standards mandated by other federal law shields an employer from ADA liability. Id. at 1307 n.1 (citing 42 U.S.C. § 12113; 29 C.F.R. § 1630.15(e)). In its unpublished decision in Hunter v. Habegger Corp., 139 F.3d 901 (7th Cir. 1998), the Seventh Circuit took a similar stance. Starting with the language of Section 102(a), the court reasoned that “[s]ince statutory subsections pari materia must be construed with reference to each other, it seems clear that in order to assert that one has been discriminated against because of an improper medical inquiry, that person must also have been otherwise qualified.” 139 F.3d 901, at *13.
In its more recent encounters with this issue, however, the Seventh Circuit has implicitly rejected Celadon’s preferred interpretation, operating instead on the assumption that Section 102(d)(2) means what it says: employers may not require any job applicants to submit to medical inquiries or examinations prior to extending at least a conditional offer of employment. In Murdock v. Washington, 193 F.3d 510 (7th Cir. 1999), cert. denied, 529 U.S. 1134 (2000), while not addressing the question squarely, the court stated succinctly that, “Title I of the ADA, prohibiting disability discrimination in employment, has a section limiting medical testing for disabilities, see 42 U.S.C. § 12112(d)(2)–(4), and does not require that an individual be disabled to state a claim.” 193 F.3d at 512 (some citations omitted). In O’Neal v. City of New Albany, 293 F.3d 998 (7th Cir. 2002), the court offered a similarly oblique endorsement of a plain-meaning reading, mentioning with approval the consensus among several sister circuits that “in general a plaintiff need not show disability to sue for medical testing violations under § 12112(d), ” while noting that the Seventh Circuit itself had yet to take a definitive stand on the issue-and declining yet again to make such a holding. 293 F.3d at 1007. See also Hodgdon v. Northwestern Univ., 245 F.R.D. 337, 342 (N.D. Ill. 2007) (concluding that though O’Neal did not decide the issue, it had stressed that all the cases that had done so squarely had found an applicant’s “qualified” status relevant to remedies rather than whether he could state a prima facie claim).
Though the Seventh Circuit has spoken enigmatically on this issue, the clear tilt of its reasoning and the straightforward application of the principles of statutory construction compel us to conclude that the EEOC can state a claim for a violation of Section 102(d) without establishing that the applicants were otherwise qualified. “All statutory interpretation begins with the language of the statute itself.” Pittway Corp. v. United States, 102 F.3d 932, 934 (7th Cir. 1996) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)) (additional citations omitted). In interpreting this language, we keep in mind “one of the most basic interpretive canons”: that a statute “should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 U.S. 303, 314 (2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)). Here, Section 102(d)(1) announces that the statute’s prohibitions on discrimination fully apply to covered entities’ use of medical examinations and inquiries; this expressly incorporates Section 102(a)’s limitation of the Act’s protections to “qualified individual[s].” 42 U.S.C. §§ 12112(a), 12112(d)(1). The next paragraph, however, enacts a specific prohibition on pre-employment inquiries and examination, and it explicitly restricts employers’ use of such techniques with respect to “job applicants.” Id. at § 12112(d)(2). Section 102(d)(2), in other words, mentions neither qualified individuals nor discrimination. The most natural interpretation of these provisions in conjunction is that “job applicants” means something different-something broader, in fact-than “qualified individuals.” See Fredenburg v. Contra Costa Cnty. Dep’t of Health Servs., 172 F.3d 1176, 1182 (9th Cir. 1999). This reading not only gives effect to Congress’s decision to use distinct terminology in distinct provisions of the statute, but it also avoids reading Section 102(d)(2) as a nullity, a mere restatement of the paragraph preceding it. As other courts have recognized, available evidence of congressional intent is consistent with the notion that the prohibition on pre-employment inquiries and examinations was enacted as a broad, prophylactic measure. See Harrison, 593 F.3d at 1213–1214 (citing H.R. Rep. No. 101– 485, pt. 2, at 1); Griffin v. Steeltek, Inc., 160 F.3d 591, 594 (10th Cir. 1998), cert. denied, 526 U.S. 1065 (1999) (“The legislative history of the ADA indicates that Congress wished to curtail all questioning that would serve to identify and exclude persons with disabilities from consideration for employment.”).
We therefore conclude that the EEOC need not establish that the job applicants who were subjected to pre-employment inquiries and examinations were “otherwise qualified” in order to state a claim that Celadon violated 42 U.S.C. § 12112(d)(2). As the Seventh Circuit has recognized, this result is in accord with a majority of circuit courts to have considered the question. O’Neal, 293 F.3d at 1007. See Fredenburg, 172 F.3d at 1182; Griffin, 160 F.3d 591 at 593–595; Cossette v. Minn. Power & Light, 188 F.3d 964, 969–970 (8th Cir. 1999). But see Tice v. Centre Area Transp. Auth., 247 F.3d 506, 516–517 (3d Cir. 2001) (determining that “it is not clear from the text of the ADA itself whether nondisabled individuals are permitted to sue for violations of § 12112” and declining to decide the question).
Celadon argues in the alternative that, even if 42 U.S.C. § 12112(d)(2) applies to all job applicants, the EEOC has not stated a claim here because it cannot demonstrate that any of the class members suffered an “injury-in-fact” as a result of the allegedly unlawful inquiries and examinations. Def.’s Br. 29–30.
It is true that an individual plaintiff cannot recover damages on an unlawful inquiry claim without demonstrating that she suffered a tangible harm resulting from the company’s conduct. Strong v. Paulson, 249 Fed. App’x 470, 473 (7th Cir. 2007) (“To prove a violation under 42 U.S.C. § 12112(d)(2), a plaintiff must demonstrate that he suffered some tangible injury-in-fact.”); O’Neal, 293 F.3d at 1007–1008 (Collecting cases from sister circuits and noting that, “[i]n all of these cases . . . the courts have required that a nondisabled plaintiff at least ...