The Equal Employment Opportunity Commission (EEOC) has made genetic discrimination one of its top national priorities. To date, the EEOC has received more than 700 charges under the Genetic Information Nondiscrimination Act (GINA). As a result, the EEOC has started to file actions against companies for violating GINA.
WHAT IS GINA?
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits the use of genetic information in making employment decisions in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. GINA bars employers from requesting, requiring, or even purchasing genetic information about a potential or present employee.
WHAT IS GENETIC INFORMATION?
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). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. A family member includes relatives up to the 4th degree, as well as spouses and dependents (adoptive or otherwise). Genetic information does not include information about a person’s sex, age, race, or ethnicity.
GINA ENFORCEMENT ACTIONS
In May 2013, the EEOC filed its first ever GINA enforcement action. In EEOC v. Fabricut, an individual, working as a temporary memo clerk, applied for a permanent position. Fabricut made an initial offer; but the offer was contingent on the applicant taking a medical examination through its contract medical examiner. The examination included a questionnaire that asked about the applicant’s family medical history, including whether anyone in the applicant’s family had suffered from heart disease, hypertension, cancer, diabetes, and mental disorders. Fabricut rescinded its job offer after the examination concluded that the applicant suffered from carpal tunnel syndrome.
The EEOC found cause to pursue the applicant’s claims for discrimination under both GINA and the Americans with Disabilities Act (ADA). The disability claim was based on the EEOC’s finding that Fabricut had rescinded the job offer because of its perception that the applicant suffered from carpal tunnel syndrome. Interestingly, the suit settled the same day it was filed. Fabricut agreed to pay $50,000 in damages, and also agreed to post and distribute anti-discrimination policies around its workplaces.
Fast on the heels of the Fabricut suit, the EEOC filed a GINA class action against a nursing home in upstate New York. The suit targeted the nursing home’s practice of requiring both applicants and employees to undergo annual medical examinations that requests family medical information.
INSIGHTS FOR EMPLOYERS
- Determine whether it is necessary for your employees to have medical examinations.
- If a medical exam is necessary, make sure family medical history is not requested. Employers may not request a family medical history from employees or applicants, even as part of a post-offer medical examination.
- Contracting out employee medical examinations does not get you “off the hook.” See Fabricut above. If you contract this work out, make sure to review the contents of the medical exam with the medical provider to iron out any potential GINA violations.
- Take note that GINA prohibits more than just discriminating against employees and applicants based on their genetic information. The simple act of collecting genetic information can constitute a GINA violation.
Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.