EEOC Gets Tough With Companies on Genetic Privacy
Earlier this month the U.S. Equal Employment Opportunity Commission filedand quickly settledits first lawsuit accusing an employer of gathering illegal genetic information during a job applicants medical exam. The agency followed it up last Thursday by filing its first class action suit against another employer on similar grounds.
The Genetic Information Nondiscrimination Act went into effect in 2009, and some individuals have sued companies under it. But not until this month did the government take official action to enforce GINA, as the law is called.
Employers need to be aware that GINA prohibits requesting family medical history," said David Lopez, general counsel of the EEOC, in a statement. When 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.
In doing so, the EEOC is fulfilling a promise made in its Strategic Enforcement Plan to focus on six priorities this year. One of them is emerging and developing issues in equal employment law, including genetic discrimination.
GINA applies to any employer that has at least 15 employees and prohibits the company from requesting or using "genetic information" in hiring, termination, and other employment decisions.
Last week the agencys class action suit accused Founders Pavilion Inc., a Corning, New York nursing home, of wrongly requesting routine family medical histories as part of health exams before and after workers accept jobs.
Founders did not immediately return calls for comment.
According to the suit in U.S. District Court in Rochester, Founders conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired.
Elizabeth Grossman, the regional EEOC attorney in New York, said in a statement that not only did the employer ask for prohibited information, it also discriminated against individuals with disabilities or perceived disabilities, as well as pregnant women.
Earlier, on May 7, the agency sued Tulsa-based Fabricut Inc., a large distributor of decorative fabrics, in U.S. District Court for the Northern District of Oklahoma. Besides violating GINA, the company also refused to hire the applicant because it regarded her as having carpal tunnel syndromea violation of the Americans with Disabilities Act.
At the same time as it announced the suit, the EEOC said Fabricut had entered into a consent decree, agreeing to pay $50,000 and to undergo certain reforms, such as providing anti-discrimination training to employees with hiring responsibilities.
However, in a written statement to CorpCounsel.com on Wednesday, Fabricut human resources director Lisa Cottman denied that her company discriminated against the applicant. Cottman said the settlement, is not an admission of any wrongdoing . . . and the decision to reach a compromise in this matter was to avoid protracted and costly litigation.
She also said the family medical history was gathered by a third-party medical provider, not by Fabricut, and was not used in the decision.
It doesnt matter, 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 (third-party) medical examiner, violates this law," Seely said in a statement.
And, according to the law, it doesnt matter if a company doesnt know about the medical examiners request. In other words, it is the companys responsibility to make sure any third-party medical examiner it hires doesnt ask an illegal question.
However, GINA provides a safe harbor for employers if they attach language to any request for information from a health care provider that tells the applicant not to answer questions about family or genetic information.