EEOC Suing Employers Under Genetic Information Nondiscrimination Act

    22 May 2013

    In the first half of May, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed its first-ever lawsuits against employers under the Genetic Information Nondiscrimination Act of 2008 (“GINA”). The GINA, which took effect November 21, 2009, prohibits employers from using genetic information in employment related decisions, classifying employees based on genetic information or requesting genetic information from an employee.

    EEOC v. Fabricut

    On May 7, 2013, the EEOC sued Fabricut, Inc. under the GINA in federal court in Oklahoma.[1] The EEOC alleged that Fabricut had withdrawn an offer of employment because the company believed the applicant had or was predisposed to develop carpel tunnel syndrome (“CTS”) on the basis of a post-offer medical examination that required disclosure of family medical history that included genetic information. According to the EEOC, as Rhonda Jones’ temporary assignment as a memo clerk neared completion, she applied for permanent employment in that position. Fabricut extended an offer, subject to a pre-employment drug test and physical. Knox Laboratory, under contract to Fabricut, required Jones to submit a questionnaire disclosing various disorders in her family medical history. After medical testing, the examiner concluded additional evaluation was needed to see if Jones had CTS. Jones’ physician conducted further tests and reported that she did not have CTS. Jones gave this information to Fabricut, which nonetheless rescinded its offer of employment because of Knox Laboratory’s finding.

    The parties have agreed to a settlement via a consent decree filed the same day as the complaint. If approved by the court, Fabricut will pay $50,000, post an anti-discrimination notice to employees, disseminate anti-discrimination policies to employees, and provide anti-discrimination training to employees with hiring responsibilities.

    EEOC v. Founders Pavilion

    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.[2] The EEOC alleges that Founders “requests family medical history as part of its pre-employment, return-to work and annual medical examinations of its staff” in violation of the GINA. This alleged GINA violation is coupled with allegations of pregnancy and disability discrimination under Title VII and the ADA on behalf of several Founders employees. Founders has not yet filed a response to the complaint.

    What Does This Mean For You?

    These cases share two threads. First, 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.” (emphasis added). 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. The statute exempts “inadvertent” and other permissible acquisitions of such information.

    The GINA regulations also provide a “safe harbor” for employers who provide the following warning to third parties who provide employers with medical information about their employees: 

    The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

    Employers should provide their medical examiners with this written instruction.

    Second, the GINA claims in these two cases were accompanied by, and as a practical matter ancillary to, discrimination claims under the ADA and Title VII. This is to be expected. The GINA only prohibits discrimination based on genetic information. Thus, the GINA does not cover a claim of discrimination based upon the “manifestation of a disease.” Such a claim would be covered by the Americans With Disabilities Act (if the “manifestation of a disease” satisfied the definition of “disability” under the ADA). In Fabricut, the EEOC’s allegation that the company withdrew its offer of employment based on Jones having or being predisposed to CTS stated a claim under the ADA. In Founders Pavilion, the EEOC’s allegations that employees were denied jobs or terminated based upon pregnancy or other physical conditions were brought under Title VII or the ADA.

    Employers should understand these cases in a larger context. The day before filing Founders Pavilion, the EEOC updated its informal guidance for employers on how the ADA applies to job applicants and employees with cancer, diabetes, epilepsy and intellectual disabilities. The message is clear:  the EEOC is paying serious attention to health-related employment discrimination. Employers should ensure that their managers and supervisors are trained as to the proper do’s and don’ts in hiring, firing, disciplining and responding to employee concerns that touch upon health-related issues.

    [1] Civil Case No. 13-CV-248-CVE-PJC.

    [2] Civil Action No. 6:13-CV-06250.