The Genetic Information Nondiscrimination Act (GINA) was passed by Congress in 2008 to prevent employers from demanding genetic information, including family medical history, and using that information in the hiring process. However, GINA’s impact on employers has been minimal until two recent cases filed by the Equal Employment Opportunity Commission (“EEOC”) appear to have expanded its reach.
In the first two lawsuits enforcing GINA for requested family medical history, the EEOC alleges that employers violated this genetic discrimination law by asking about family medical history in pre-employment required physical exams. In one lawsuit, the EEOC charged that Tulsa-based Fabricut violated the Americans with Disabilities Act (ADA) when it refused to hire a woman for the position of memo clerk because it regarded her as having carpal tunnel syndrome, and violated the GINA when it asked for her family medical history in its post-offer medical examination. Fabricut had sent this new hire to its contract medical examiner for a pre-employment drug test and physical. At the physical, the employee was required to fill out a questionnaire and disclose the existence of numerous separately listed disorders in her family medical history.
The other EEOC suit claimed Founders Pavilion Inc., a Corning, N.Y., nursing home, similarly conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired. As part of this exam, family medical history was also requested. 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.
What was most surprising in these cases is that the medical information was gathered by a third-party medical provider, not directly by the employer. The EEOC is taking the position that GINA applies whenever an employer conducts a medical exam, and employers are liable for the acts of these medical providers who are “agents” of the employer. According to 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.”
According to an EEOC press release, 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 discrimination.
Employers should review their corporate wellness programs and hiring practices to ensure they are not unwittingly obtaining prohibited genetic information about their employees or applicants for employment. For more information about this matter, please email [email protected]