Congress
enacted the Genetic
Information Nondiscrimination Act (GINA) in 2008. Title II of GINA specifically prohibits employers
from discriminating against or harassing job applicants or
current employees based on their genetic information. To prevent employers from
unlawfully using genetic information in employment decisions, companies may not
request or require applicants or employees to provide such information.
Under the law, genetic
information includes the following:
- Information regarding a person’s genetic tests;
- Genetic information showing an increased risk for a disorder, disease, or other medical condition;
- Information showing an individual requested or received any type of genetic services;
- Genetic information of a pregnant woman or fetus;
- Genetic tests of family members or family medical history.
GINA
prevents employers from requesting family medical history and tests because
such information may show that the individual may have a predisposition for
certain diseases or disorders.
Landmark
Case for EEOC
Issues
under GINA have been litigated by the Equal Employment Opportunity Commission
(EEOC) three times, with only one case alleging an employer engaged in systemic
discrimination. The former case, EEOC v. Founders Pavilion Inc.,
recently settled, and the EEOC calls the settlement a major milestone in
employment law.
As part
of its hiring process, Founders Pavilion Inc. conducted pre-employment medical
exams, during which it unlawfully requested family medical history in violation
of GINA. The EEOC case further alleged violations of the Americans with
Disabilities Act (ADA) and Title VII, claiming that based on the medical exams,
the company refused to hire two women for perceived disabilities, refused to
hire three women because of pregnancy, and fired a current employee after
refusing to accommodate her disability.
Ten
months after the complaint, the EEOC and Founders Pavilion came to a settlement
agreement
totaling $370,000. The five employees who suffered unlawful discrimination
under the ADA and Title VII will split $259,600, while 138 individuals who were
unlawfully asked to provide family medical history or other genetic information
will share $110,400. The company will furthermore have to post notices of the
lawsuit in the workplace, adjust its anti-discrimination policy and notify and
train employees on the changes, and periodically report to the EEOC for five
years.
Reminder
for All Employers
Though
GINA claims have been few and far between, the Founders Pavilion case reminds
employers that the EEOC will take allegations of GINA violations very
seriously. Furthermore, the case is another example of how GINA violations
often go hand-in-hand with violations of the ADA, Title VII, or other
employment laws. The consequences of such violations may be serious for
employers.
Asking
questions regarding family medical history on job applications or during
job-related medical exams is against the law. There are only six narrow
exceptions to this rule, which may be found here. Otherwise, companies should
make sure their application and medical exam policies are in compliance with
the law.
If you believe that you have suffered
unlawful discrimination based on your genetic information or any other
protected reason, you should contact the Pershing Square Law Firm as soon as possible
to discuss a possible case.
No comments:
Post a Comment