WHO IS GINA, AND WHY SHOULD I CARE ABOUT HER?
We in the Human Resources and employment law field have an alphabet soup of federal statutes to keep on top of: FLSA, FMLA, ADA, ADAAA, and ADEA, among others. But there’s a relatively young law that you may not be aware of, but should be—GINA. GINA is the Genetic Information Nondiscrimination Act of 2008.
Because GINA just became law a few years ago, and is fairly limited in its scope, many employers may not have given her much thought. But the U.S. Equal Employment Opportunity Commission (EEOC) recently filed its first lawsuit against an employer for a GINA violation, resulting in the employer paying $50,000. So employers beware—GINA is out there, and the facts in this case show how easy it can be for an employer to run afoul of GINA’s prohibitions.
GINA prohibits covered entities, which includes all employers covered by Title VII of the Civil Rights Act of 1964, from using genetic information in making employment decisions. You may be thinking, “Great! I don’t conduct DNA testing or clone my employees, so I don’t have anything to worry about.” Not so fast—“genetic information” means not only genetic tests, but also information about the manifestation of a disease or disorder in family members of an individual. So information that one of your employees has a family history of heart disease is “genetic information” and you cannot use that information to discriminate against an individual regarding hiring, discharge, compensation, or the terms or conditions of employment.
Employers are also prohibited under GINA from limiting, segregating, and classifying individuals in any way that would deprive the individual of employment opportunities because of the individual’s genetic information, unless required to do so by law or regulation mandating genetic monitoring, such as an OSHA requirement.
Where employers are most likely to get into trouble is in GINA’s prohibition against acquiring genetic information. Under GINA, an employer generally may not request, require, or purchase genetic information of an employee or family member of the employee. This includes as part of a post-offer employment physical. The GINA regulations put the burden on covered employers to tell health care providers not to collect genetic information, including family medical history, as part of a medical exam intended to determine if an individual is able to perform a job. If the employer learns that the health care provider is requesting genetic information as part of the pre-employment physical exam, the employer must “take additional reasonable measures within its control.” What an additional reasonable measure might be depends on the facts and circumstances, but it could include no longer using that health care provider. It was this provision of GINA that was involved in the EEOC’s first GINA lawsuit.
On May 7, 2013, the EEOC filed and settled its first complaint alleging genetic discrimination. In EEOC v. Fabricut, Inc., the agency alleged that Fabricut violated GINA by requiring applicants for employment to indicate in post-offer medical examinations whether they had a family medical history of a variety of disorders and diseases. According to the EEOC’s complaint, Fabricut then used that information in hiring and employment decisions.
This case is instructive of how easily an employer can be brought into court for an alleged GINA violation. The employee’s initial complaint had nothing to do with GINA or Fabricut’s alleged acquiring of family medical histories. Instead, the employee filed a charge with the EEOC alleging a violation of the ADA because she claimed Fabricut unlawfully refused to hire her because it perceived her to be affected by carpal tunnel syndrome. As part of its investigation of the ADA claim, the EEOC obtained the medical records reflecting the claimant’s post-offer medical examination. These records, according to the EEOC’s complaint, showed an unlawful inquiry for genetic information from the claimant. The EEOC then notified Fabricut that its investigation would include an inquiry into the employer’s compliance with GINA relating to Fabricut’s solicitation of family medical histories of applicants.
Fabricut chose not to fight the EEOC charge. Instead, on the same day that the EEOC filed its complaint in the district court for the Northern District of Oklahoma, the EEOC and Fabricut entered into a consent decree whereby Fabricut did not admit any violation of the law but agreed to pay the claimant $50,000 in order to avoid the costs and burden of litigation. In addition, the consent decree required Fabricut to post a notice for six months, informing employees of their rights under the ADA and GINA, as well as conduct a review of its policies and conduct training on the ADA and GINA.
What can employers learn from this case? First, the EEOC is actively enforcing GINA, even when there are no allegations of a violation in the charge. Second, the types of family medical history questions health care providers routinely ask are prohibited in the context of post-offer physical exams. The burden is on the employer to ensure that the health care provider does not make improper requests for genetic information. Third, employers offering wellness programs should ensure that these programs are in compliance with GINA.
GINA is a complex law. If you have any questions, you are well-advised to consult with your legal counsel.