Employers who have yet to put the Genetic Information Non-Discrimination Act (“GINA”) on their radar should probably re-consider their priorities.  The Equal Employment Opportunity Commission (“EEOC”) is already at the point where the agency isn’t just bringing suits to enforce violations of that law, it is now settling them. 

GINA took effect in 2009 and the law makes it illegal for employers to discriminate against applicants or employees because of genetic information – including family medical history.  Employers are also prohibited from requesting, requiring, or purchasing such information.  Recently, the EEOC announced that Fabricut, Inc., a large fabric distributor, will pay $50,000 to settle a disability and GINA suit which the Commission advanced.  According to the EEOC, Fabricut violated GINA when it asked an applicant, Rhonda Jones, to provide her family medical history.  The Commission also claimed that Fabricut violated the Americans with Disabilities Act (“ADA”) when it subsequently refused to hire her because of her carpal tunnel syndrome.  

Jones initially worked for Fabricut in a temporary position as a memo clerk, but eventually applied for a permanent job.  Fabricut made Jones an employment offer and then sent her to its contract medical examiner for a pre-employment drug test and physical.  Before her physical, Jones had to complete an extensive questionnaire that required her to disclose several disorders in her family medical history.  Based on Jones’ questionnaire and physical, the medical examiner concluded Jones had carpal tunnel syndrome, and Fabricut rescinded its job offer.  

In this case, a third party medical examiner requested the prohibited information.  However, using a contract medical examiner does not shield an employer from liability.  Beyond providing training on GINA to employees who coordinate your hiring process, employers need to ensure that their third party providers comply with GINA and the ADA.  Employers should discuss their compliance concerns with third party providers and offer to have counsel review any forms used by these providers.  Entering into contracts with their providers binding them to comply with the law and indemnify you for any claims that may be brought as a result of the failure to hire an employee – another area appropriate for consultation with competent counsel – isn’t a bad idea either.           

While GINA may not be quite as mainstream as the other discrimination laws which have been on the books for decades, that doesn’t mean employers should pay any less attention to it.  This settlement is the first of what will likely be many more suits brought under that law nationwide.

Lindsay Bouffard focuses her practice in the area of labor and employment law.
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