Genetic Information Discrimination On The EEOC’s Radar
Legal updates
Genetic Information Discrimination On The EEOC’s Radar
June 2013
On May 7, 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed and settled its first genetic discrimination complaint in the U.S. District Court for the Northern District of Oklahoma for $50,000. Specifically, the complaint alleged that the conduct of Fabricut, Inc. – one of the world’s largest decorative fabric distributors – violated the Americans with Disabilities Act (“ADA”) when it refused to hire Rhonda Jones because it believed she had carpal tunnel syndrome (“CTS”). Additionally, the complaint alleged that Fabricut violated the Genetic Information Nondiscrimination Act (“GINA”) when it asked Ms. Jones to disclose family medical history during a post-offer medical examination.
According to the EEOC’s complaint, Ms. Jones had worked for Fabricut as a temporary memo clerk for three months prior to applying for a permanent position in the company. Upon offering Ms. Jones a permanent position, Fabricut referred her for a pre-employment drug test and physical with its contract medical examiner. At the physical, Ms. Jones was required to complete a questionnaire, asking her to disclose disorders in her family’s medical history such as heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis, and any mental disorders. Fabricut’s medical examiner determined that Ms. Jones needed further evaluation in order to definitively determine whether she suffered from CTS.
Fabricut informed Ms. Jones that she needed to visit her personal physician for further examination and return the results of CTS tests and evaluations to the company. Although Ms. Jones’ personal physician concluded that she did not have CTS, when she provided Fabricut the evaluation results, Fabricut rescinded its job offer because its own medical examiner’s tests indicated that she had CTS.
According to the filed complaint, the alleged conduct violated the ADA, which prohibits discrimination based on perceived or actual disability. The lawsuit also alleged that Fabricut violated GINA, which prohibits discrimination against employees or applicants based on genetic information, including family medical history. GINA also makes it illegal for employers to request, require, or purchase such medical information.
The EEOC has suggested that because Fabricut was able to understand and appreciate its situation, it quickly settled the lawsuit. Aside from the monetary settlement, the employer agreed to take prophylactic measures to prevent any potential future discrimination by, among other things, posting anti-discrimination notices, disseminating anti-discrimination policies, and training employees with hiring responsibilities.
On the heels of its first GINA settlement, the EEOC filed its first-ever GINA class action in the U.S District Court for the Western District of New York on May 16, 2013. Similar to the allegations in the Fabricut lawsuit, the EEOC alleged that Founders Pavilion, Inc. – a nursing and rehabilitation center – violated GINA during its hiring process by conducting post-offer, pre-employment medical examinations that were to be repeated annually upon hiring. Part of the medical examination included a requirement that applicants and employees disclose requested family medical history. The EEOC also included allegations that Founders terminated employees after it refused to accommodate their actual or perceived disabilities, in violation of the ADA, and has refused to hire and has fired women because they were pregnant, in violation of Title VII of the Civil Rights Act of 1964.
Employers should be aware that, according to the Agency’s EEOC Strategic Enforcement Plan, genetic discrimination is on its list of top six national priorities of emerging and developing issues in equal employment law. The EEOC has suggested that employers, public and private alike, must understand that “requesting family medical history, even through a contract medical examiner, violates the law.” The EEOC has made it abundantly clear that it is following through with its enforcement plan to abate genetic information discrimination and has noted that “[w]hen illegal questions are required as part of the hiring process, the EEOC will be vigilant to ensure that no one be denied a job on a prohibited basis.” Public employers should note that violations of any discriminatory statutes, including GINA, will be enforced against them by the Department of Justice.
* As published in the NPELRA Connections Newsletter
This information is prepared for general information purposes only. The summaries of recent court opinions and other legal developments are not necessarily inclusive of all the recent legal authority of which you should be aware when making your legal decisions. Thus, while every effort has been made to ensure accuracy, you should not act on the information contained herein without seeking more specific legal advice on the application and interpretation of these developments to any particular situation.
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