Milestone GINA Case Warns Employers about Application Questions

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.

Can My California Employer Check My Credit?

In previous years, it was common for employers throughout the United States to check a job applicant’s credit to help make employment decisions. If applicants had poor credit, the potential employer would often see that as a sign of irresponsibility and decide not to hire that person. However, in recent years, with the economic downturn, more Americans than ever have credit problems. Unemployment, mortgage foreclosures, and other financial struggles have made it difficult for people to pay all of their bills and have caused a large number of credit scores to plummet. Those lower credit scores have made it difficult for some Americans to secure employment, which only furthers their financial difficulties.

Recent reports, however, have indicated that a low credit score has little to no reflection on whether an applicant has the ability to adequately perform job duties. For that reason, in December of 2013, Senator Elizabeth Warren (D-Mass.) introduced proposed federal legislation, the Equal Employment for All Act, which would amend the Fair Credit Reporting Act (FRCA) to prohibit employers across the United States from using credit information to make employment decisions, all in order to protect applicants and employees from unjust discrimination.

California Credit Check Laws

While the federal legislation is still pending, California job applicants and employees are already protected from discrimination based on credit checks. California is one of ten states that have enacted such legislative protections for employees as of January 1st, 2014. These states include California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington. Additionally, 35 other states have pending legislation related to employer credit checks.

Generally, most California public and private employers may not use credit information as the basis for any adverse employment action, such as hiring, demotion, rejection for promotion, or termination. An employer may not otherwise discriminate against or harass an employer based on credit information.

Exceptions to the Law

There are certain exceptions in which an employer may use credit information as the basis of an employment decision. Such exceptions are necessary in fields of employment that involve the handling of money or certain financial responsibilities. Some exceptions include applicants for:

·         A managerial position who qualifies for the executive exemption from wage and hour laws;

·         A position that allows the employee to transfer company money, enter into financial contracts for the company, or be a signatory on the company’s credit cards or bank accounts;

·         A position that gives the employee access to large amounts of credit or bank applications or other personal information of customers;

·         A position that gives the employee access to trade secrets or other confidential company information;

·         A position in which the employee handles large amounts of client money.

It makes sense that credit checks would be allowed for such positions that require a large amount of trust or financial responsibility. However, for any other type of position, California employers should never use credit information to make decisions or to discriminate against an applicant or employee.

If you have any concerns about employer credit checks, or if you believe that a company has violated employment laws, contact the office of Pershing Square Law Firm today for assistance in protecting your rights.