A few months ago, we told you about the EEOC’s first lawsuit alleging a violation of the Genetic Information Nondiscrimination Act of 2008 (“GINA”). A week after settling that case, which was brought on behalf of an individual, the EEOC filed another complaint.  In this new action, the EEOC alleged for the first time a systemic, or class-wide, violation of GINA.  In January, the EEOC and the employer entered into a consent decree, where the employer admitted no wrongdoing, but agreed to pay a total of $110,400 to a group of 138 employees who it hired during the time it used a medical form that asked for family medical histories. 

On May 16, 2013, the EEOC filed an action against Founders Pavilion, Inc., a nursing home and rehabilitation facility.  Among the charges, the EEOC alleged that Founders required a class of 138 applicants and employees to provide genetic information in response to questions about their family medical histories, in violation of GINA.  If you recall, GINA prohibits covered employers, which includes all employers covered by Title VII of the Civil Rights Act of 1964, from using genetic information in making employment decisions.  “Genetic information,” as defined by GINA, includes family medical histories. 

According to the EEOC, Founders intentionally engaged in a pattern or practice of employment actions that are unlawful under GINA.  The EEOC claimed that Founders requested family medical histories as part of its pre-employment, return-to-work, and annual medical exams of its staff.  The EEOC further alleged that Founders violated GINA by not posting approved notices setting forth excerpts or summaries of the pertinent provisions of GINA.  Note that the EEOC did not claim that Founders hired, fired, demoted, or refused to hire anyone based upon their family medical history.  Nevertheless, the EEOC claimed that Founders’ actions deprived the class of equal employment opportunities and otherwise adversely affected the employees because of genetic information. 

Rather than challenge the EEOC, Founders entered into a consent decree, agreeing to pay each person in the class $800, to adopt anti-discrimination policies and complaint procedures that include a detailed explanation of the prohibition against genetic discrimination and obtaining genetic information, and to provide initial and annual training for its employees that includes information on GINA. 

As these two cases show, the EEOC is actively enforcing GINA.  As an employer, this would be a good time to evaluate your own policies and procedures to ensure you are compliant with GINA.  Do you ask for family medical history in pre-employment, return-to-work, or other medical exams?  Do you have approved GINA notices posted?  Do your policies and procedures include sections on GINA?  Are your HR personnel trained on GINA and its requirements?  If not, you should take note of GINA and revise your policies before you become a target of the EEOC.

Mark Jeffries focuses his practice in the area of labor and employment law. He has represented employers in wrongful discharge and discrimination cases in state and federal court, as well as before the West Virginia Human Rights Commission and the U.S. Equal Opportunity Commission.
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