The Equal Employment Opportunity Commission (EEOC) announced
last week that it had settled its first lawsuit alleging violations
of the Genetic Information Nondiscrimination Act (GINA). GINA,
which was passed by Congress in 2008, makes it illegal for
employers with 15 or more employees to discriminate against
employees or applicants on the basis of genetic information. More
specifically, GINA makes it unlawful for employers to inquire about
(1) an individual's genetic tests; (2) the genetic tests of an
individual's family members; and (3) the manifestation of a
disease or disorder in the family members of such an individual.
The law allows for some exceptions, including where an
employee's family medical history is required in order for the
employer to comply with the certification provisions of the Family
and Medical Leave Act; and where the employer offers health or
genetic services as part of a wellness program, so long as no
individually identifiable information is provided directly to the
employer.
In this suit, the EEOC had charged Oklahoma-based employer
Fabricut, Inc. with violating GINA by asking an applicant about her
family medical history – including the existence of heart
disease, cancer, diabetes, arthritis, and mental illness – as
part of a mandatory post-offer medical exam. The EEOC also charged
Fabricut with violations of the Americans with Disabilities Act
when it refused to hire the applicant based on its assessment that
she had carpal tunnel syndrome. Per the terms of a consent decree,
which the EEOC filed simultaneously with its lawsuit, Fabricut
agreed to pay $50,000 and to take actions to prevent future
discrimination. See Equal Employment Opportunity Commission v.
Fabricut Inc., Case No. 13-Civ. 248 (CVE)(PJC) (N.D. Okla. May
7, 2013).
At the end of 2012, the EEOC declared that genetic discrimination
would be one of its top priorities over the next four years.
Employers should confirm that none of their policies run afoul of
GINA, and should make sure that they are not requesting family
medical history or other genetic information from employees –
whether directly or through a required medical exam. Employers
should also update their employee handbooks to reflect that they do
not discriminate on the basis of genetic information.
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