On May 17, 2013 we reported that in accordance with its priorities in its Strategic Enforcement Plan (“SEP”) the EEOC announced that it filed a GINA class action against The Founders Pavilion, Inc., a Corning, N.Y. nursing and rehabilitation center, its first systemic lawsuit under GINA.

GINA,  the Genetic Information Nondiscrimination Act, has been around since 2009 and makes it illegal to discriminate against employees or job applicants because of genetic information, which includes family medical history, and restricts employers from requesting, requiring or purchasing such information.  Under GINA, employers cannot, in the hiring process, request such genetic information and family medical history.

The EEOC alleged that the company conducted post-offer, pre-employment medical exams of applicants, and annual exams if the person was hired, and requested family medical history.

The EEOC has now reported a settlement in this case which amounts to a total class award of $110,400, to compensate people who were hired when the company used a form with a “Family History” questionairre.

The first lawsuit ever filed by the EEOC alleging genetic discrimination under GINA was settled last year.  The EEOC alleged in that Oklahoma case that the employer refused to hire a woman who had been given an offer of a permanent position because tests it had conducted concluded that she had carpal tunnel syndrome (“CTS”).   The company had sent her to an outside laboratory for a drug test and physical, and there she had to fill out a questionnaire disclosing the existence of numerous listed disorders in her family medical history. According to the EEOC, “[t]he questionnaire asked about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and ‘mental disorders’ in her family. [She] was then subjected to medical testing, from which the examiner concluded that further evaluation was needed to determine whether [she] suffered from carpal tunnel syndrome (CTS).”

Although her own doctor found that she did not have CTS, her offer was revoked because the company’s outside lab indicated otherwise.

GINA violations indeed are being targeted by the EEOC — be aware!