Two cases show why all employers should know about GINA
Do you know GINA as well as you should? That is a question all employers should be asking themselves. Recent activity by the EEOC has led many employers to assess their knowledge of the Genetic Information Nondiscrimination Act (GINA) or more importantly, their lack of knowledge regarding GINA.
GINA, which became effective in November 2009, prohibits the use of genetic information in employment decisions. According to the Act, genetic information includes information about an employee’s or prospective employees genetic tests, tests of family members and family medical history, including information about manifestations of a disease or disorder (i.e. cancer, diabetes or heart related illness) in an employee’s or prospective employee’s family members. GINA prohibits an employer from requiring or requesting genetic information as part of the hiring, firing, promotion, or any decision regarding terms of employment.
Until recently, the enforcement of this law had been quiet, but on May 7th, 2013, the EEOC brought an enforcement action against Fabricut, Inc. charging the company with violating the American with Disabilities Act (ADA) when it failed to hire a woman because it regarded her as having carpal tunnel syndrome (CTS.) The woman had been a temporary employee for 90 days and was offered a permanent position which required a pre-employment drug test and physical. When she arrived for her physical, she was required to complete a questionnaire and disclose the existence of numerous separately listed disorders in her family history. During the course of the exam, it was determined that she needed to be further evaluated for CTS. After further tests were completed by her physician and the results, (which indicated no CTS) were shared with Fabricut, her employment offer was rescinded because the original screening lab indicated she had CTS. Such alleged conduct violates GINA and the ADA.
After several unsuccessful attempts were made to settle the matter through the EEOC conciliation process, the lawsuit was filed. Eventually a consent decree was filed settling the case for a $50,000 payment.
Then, on May 16th, 2013 the EEOC filed a second GINA action in the form of a class action against Founders Pavilion, Inc. According to the EEOC suit, Founders conducted post-offer, pre-employment medical exams of applicants which were repeated annually if the person was hired. As part of this exam, Founders requested family medical history, a form of prohibited genetic information and in direct violation of GINA.
As part of the press releases on both of these matters, the EEOC reiterated that one of the six national priorities identified by the EEOC’s Strategic Enforcement Plan is for the agency to address emerging and developing issues in equal employment law, which includes genetic discrimination.
With these two recent filings it is suggested that all employers take the time to reexamine the process by which you obtain medical information from employees and prospective employees to make sure that you do not run afoul of the Genetic Information Nondiscrimination Act.
About the Author
Myles Reagan is Vice President at William Gallagher Associates and a member of the ExecutiveRisk team. He specializes in managing Financial Risks – mainly hedge funds , PE/VC funds, mutual funds, community banks, and asset managers.