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GINA Lawsuit Is a Warning to Employers

Apr 28, 2014

Think twice before asking applicants and employees about their family medical history and then basing employment decisions on that information.

Robin DSC Small

By Robin Paggi, Worklogic HR

When I conduct harassment and discrimination prevention workshops, I include the fact that it is illegal to discriminate against applicants and employees because of genetic information obtained by the employer. Invariably participants give me a puzzled look – how could an employer obtain genetic information about someone and why would they want to? A recent lawsuit answers those questions and demonstrates what can happen to an employer as a result.

Title II of the Genetic Information Nondiscrimination Act (GINA) took effect in 2009. According to the Equal Employment Opportunity Commission (EEOC), the government agency that enforces GINA, genetic information includes, "Information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history)."

In other words, employers are not allowed to ask applicants and employees about their family medical history to find out what kinds of diseases or disorders they might inherit and then base employment decisions (whether to hire, promote, fire, etc.) on that information. According to the EEOC, a company called Fabricut, Inc. did just that and was sued by the agency for doing so.

In a press release dated May 7, 2013, the EEOC said that when Rhonda Jones, a temporary employee at Fabricut, applied for a permanent position there, she was sent to a medical examiner for a pre-employment drug screen and physical after being offered the job. While there, "she was required to fill out a questionnaire and disclose the existence of numerous separately listed disorders in her family medical history."

After her medical testing, the examiner decided that Jones needed to be evaluated by her personal physician to determine whether she suffered from carpal tunnel syndrome (CTS). After a variety of tests, Jones’s physician said that she did not have CTS, and Jones forwarded that information to Fabricut; however, the company rescinded the job offer because the lab it used said she did have CTS.

This is what the EEOC said: "Such alleged conduct violates GINA, which makes it illegal to discriminate against employees or applicants because of genetic information, which includes family medical history; and also restricts employers from requesting, requiring or purchasing such information." So, the EEOC sued Fabricut, and the company agreed to pay $50,000.

This was the first GINA-based employment discrimination lawsuit filed by the EEOC, but based upon this statement in its May 7 press release, it won’t be its last: "One of the six national priorities identified by the EEOC’s Strategic Enforcement Plan is for the agency to address emerging and developing issues in equal employment law, which includes genetic information."

Said EEOC Regional Attorney Barbara Seely, "Although GINA has been law since 2009, many employers still do not understand that requesting family medical history, even through a contract medical examiner, violates this law."

Employers that require medical examinations would be wise to check with their medical examiners to ensure they are in compliance with this law.

Robin Paggi is the training coordinator at Worklogic HR, a human resources outsourcing company. In addition to conducting workshops on HR issues, she is a frequent presenter at conferences and a regular contributor to The Bakersfield Californian, The Kern Business Journal and Bakersfield Magazine. Contact her at rpaggi@worklogiclegal.com.
 

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