EEOC Files First GINA Lawsuits Against Employers – 3 Takeaways

“The message is clear: the EEOC is paying serious attention to health-related employment discrimination.” (Patton Boggs)

Earlier this month, Equal Employment Opportunity Commission made history with its first-ever lawsuits filed against employers under the Genetic Information Nondiscrimination Act (GINA). From Douglas Mishkin at law firm Patton Boggs:

“On May 7, 2013, the EEOC sued Fabricut, Inc. under the GINA in federal court in Oklahoma. The EEOC alleged that Fabricut had withdrawn an offer of employment because the company believed the applicant had or was predisposed to develop carpel tunnel syndrome on the basis of a post-offer medical examination that required disclosure of family medical history that included genetic information…

Nine days later, the EEOC filed its second lawsuit under the GINA, with a new wrinkle: this is the Commission’s first class action under the statute. The EEOC sued Founders Pavilion, Inc., a nursing home and rehabilitation facility in Corning, New York, in the U.S. District Court for the Western District of New York.”

Three important takeaways for employers:

1. Employers are responsible for violations committed by contracted medical examiners:

“A second common pitfall this employer fell into that many others may not even be aware could be a problem for them is that in the situation which led the EEOC to file suit the employer itself did not ask the prohibited questions – a medical examiner who was performing a post-offer/pre-employment fitness-for-duty screening on its behalf did. Such inquiries by even unrelated medical offices may constitute GINA violations by the employer who requested the exam, even if the employer did not instruct the office to do so and otherwise had no knowledge of what information was being elicited from the applicants they were contracted to examine.” (Miller & Martin)

2. Formerly routine family medical history questions are now off-limits:

“… each company allegedly was violating the GINA’s prohibition that an employer may not ‘request, require, or purchase genetic information with respect to an employee or a family member of the employee.’ The GINA defines ‘genetic information’ as including ‘the genetic tests of family members…and the manifestation of a disease or disorder in the family members of such individual.’ Thus, the GINA prohibits what have been routine requests for medical information by employers or their designees, because such requests frequently seek information about family members.” (Patton Boggs)

3. The EEOC may just be getting started:

“While the EEOC charges filed alleging GINA violations have increased each year since the law’s inception, the number is still extremely small relative to all other charges filed with the Agency. However, in light of the steady increase in GINA charges as well as this recent complaint filed in federal court, employers would do well to ensure that their policies and procedures are compliant with GINA guidelines. […] Employers should be aware that the EEOC is far more likely to seek a public resolution of a charge if it involves a new or emerging legal issue.” (Proskauer)

The updates:

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