Another employer has settled a GINA class action brought by the Equal Employment Opportunity Commission – for $187,500.

The EEOC told a Practising Law Institute conference two years ago of a number of workplace issues which it planned to address, one of which was targeting violations of the Genetic Information Nondiscrimination Act. The law was new, and few cases had been filed.

See also: Newest EEOC wellness program lawsuit draws further industry ire

What is GINA?

GINA makes it illegal to discriminate against employees or job applicants because of genetic information, which includes family medical history, and restricts employers from requesting, requiring or purchasing such information.

Under GINA, employers cannot, in the hiring process, request such genetic information and family medical history.

The first GINA lawsuit

The first lawsuit ever filed by the EEOC alleging genetic discrimination under GINA was settled in May of 2013. The EEOC alleged in that Oklahoma case that the employer refused to hire a woman who had been given an offer of a permanent position because tests it had conducted concluded that she had carpal tunnel syndrome. The company had sent her to an outside laboratory for a drug test and physical, and there she had to fill out a questionnaire disclosing the existence of numerous listed disorders in her family medical history.

According to the EEOC, “[t]he questionnaire asked about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and ‘mental disorders’ in her family. [She] was then subjected to medical testing, from which the examiner concluded that further evaluation was needed to determine whether [she] suffered from carpal tunnel syndrome (CTS).”

Although her own doctor found that she did not have CTS, her offer was revoked because the company’s outside lab indicated otherwise.

GINA and the EEOC’s Strategic Enforcement Plan

On May 17, 2013 we reported that in accordance with the priorities in its Strategic Enforcement Plan (and its promise to the PLI conference) the EEOC filed a GINA class actionagainst a Corning, N.Y. nursing and rehabilitation center, its first systemic lawsuit under GINA.

The EEOC alleged that the company conducted post-offer, pre-employment medical exams of applicants, and annual exams if the person was hired, and requested family medical history. The case was settled for $110,400.

The new settlement

The EEOC has just announced that it has settled another GINA class action brought against three California farm suppliers who required job applicants to take physical exams and fill out questionnaires which asked about medical conditions, and the applicants’ family medical histories.

See also: Is your wellness program on the right side of the law?

One applicant was required to report disability-related information and family medical history which was unrelated to the job requirements, and ultimately refused hiring “due to his perceived disability.”

Takeaway

An EEOC attorney cautioned employers: “The law with respect to genetic information is relatively new, and this is one of the first cases resolved in litigation by the EEOC in this district. … Employers need to familiarize themselves on the prohibitions with respect to pre-employment inquiries and maintaining the confidentiality of medical information.”

Another EEOC attorney summed up compliance with GINA: “There are strict guidelines prohibiting inquiries into a job applicant’s medical condition and disability prior to hire. Even after hire, employers should avoid asking questions about an applicant’s medical condition if it is not job-related. With respect to genetic information – or family medical history – the law is even more restrictive in that most employers may never ask or acquire genetic information from applicants or employees.”

Richard B. Cohen is a partner at Fox Rothschild’s New York City office. To contact the author: rcohen@foxrothschild.com. This Legal Alert is not intended to be, and should not be construed as, legal advice for any particular fact situation.

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