EEOC RESOLVES FIRST-EVER GENETIC INFORMATION DISCRIMINATION SUIT

The Genetic Information Nondiscrimination Act (GINA) took effect in the United States in November of 2009.  Title II of the Act prohibits employers from requesting or requiring employees or applicants to disclose their genetic information to an employer.  It also prohibits employers from using genetic information in employment decisions.   Genetic information is defined broadly for purposes of the law, and includes information about a person’s family medical history. The Equal Employment Opportunity Commission (EEOC) enforces GINA, which applies to employers with 15 or more employees.[1]

In May, the EEOC announced that it reached a settlement agreement with Fabricut, Inc. for claims brought against it by an applicant who claimed her job offer was retracted in violation of GINA and the Americans with Disabilities Act (ADA).  The plaintiff initially worked for Fabricut as a temporary employee.  She was then offered a permanent position with the company.  After the job offer was extended, Fabricut required her to undergo a post-offer, pre-employment physical examination which included questions regarding her family medical history.  Following the physical, Fabricut retracted her job offer because of a concern that she might have carpal tunnel syndrome.[2]

The EEOC took the position that Fabricut violated GINA by requiring this individual to disclose her family medical history during the post-offer, pre-employment medical physical exam.  Even though Fabricut apparently did not use family medical history information in making its decision to retract the job offer, the mere fact that it required the applicant to disclose such information as a term and condition of her employment constituted a violation of GINA.  Fabricut agreed to pay $50,000 and implement corrective action steps to resolve the case.

This is the first case the EEOC has filed in federal court to enforce GINA.[3]  Employers should expect that it will not be the last.  To avoid potential liability, employers are advised to review all aspects of the hiring and employment process in which workers are asked to reveal health information, including but not limited to pre-employment physicals, wellness programs and health risk appraisals, and functional capacity examinations.  In addition to assuring such inquiries are in compliance with the ADA requirements for permissible medical inquiries, employers should confirm that any disclosure of an individual’s family medical history or other genetic information is completely voluntary and never used in making an adverse employment decision against that individual.