We frequently write that the EEOC targets health care facilities under the ADA, and now it seems that it may be starting to do the same under GINA.
The services agency allegedly used a form which asked for family medical history, such as “any illnesses experienced by family members, including health conditions such as diabetes, kidney disease, heart disease, high blood pressure, arthritis, mental illness, epilepsy and cancer.” This is prohibited under GINA because it subsumes genetic information.
As an EEOC attorney said: “GINA has been in effect since 2009. Employers by now should have reviewed their procedures and practices to make sure that they or their agents do not violate the law by asking for family medical history.”
It may have been around since 2009 — but so far it is rarely seen in the courts. Perhaps until now.
GINA And The EEOC
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.
The Genetic Information Nondiscrimination Act 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 first lawsuit ever filed by the EEOC alleging genetic discrimination under GINA was settled a couple years ago. 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.
We said awhile ago that GINA violations indeed are being targeted by the EEOC — employers take heed!