First GINA Lawsuit Settled for $50,000
Gallagher Benefit Services, Inc.
In early May, the U.S. Equal Employment Opportunity Commission (“EEOC”) settled an employment discrimination lawsuit involving a violation of the Genetic Information Nondiscrimination Act (“GINA”). Although GINA has been in effect for several years – the law became effective in 2009 and final regulations were issued on November 9, 2010 – the case represents the first lawsuit ever filed by the EEOC alleging genetic discrimination under GINA.
In relevant part, the EEOC alleged in the lawsuit that the employer violated GINA Title II. Title II of GINA, which focuses on the employment relationship and describes permitted and prohibited employment practices, generally:
- Prohibits the use of genetic information in the employment context (e.g., hiring, promotion).
- Restricts employers from requiring, requesting or purchasing genetic information.
- Strictly limits employers from disclosing genetic information
Genetic information means information about an individual’s genetic tests, the genetic tests of family members, the manifestation of a disease or disorder in a family member, any request for or receipt of genetic services by the individual or a family member, or participation in clinical research which includes genetic services by the individual or a family member. Under GINA, family member is very broadly defined. Family member includes a dependent of the individual, any other person who is a first, second, third or fourth-degree relative of the individual or of a dependent of the individual. Relatives by marriage or adoption are treated the same as relatives who share a common biological ancestor. Moreover, half blood relatives such as half-siblings who share one parent are treated the same as full blood relatives.
In the case filed by the EEOC, an employee who had been working as a temporary memo clerk for 90 days applied for a permanent job in that position. The employer made her an offer of employment and sent her to a contract medical examiner for a pre-employment physical and drug test. When she reported for her physical she was asked to complete a questionnaire and disclose the existence of numerous disorders in her family medical history. The questionnaire asked about heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and “mental disorders” in her family. As the result of medical testing, the contract examiner indicated that further evaluation was needed to determine if she suffered from carpal tunnel syndrome (“CTS”). The employer told the individual she needed to be evaluated by her personal physician for CTS and to provide the results to the company. Her physician gave her a battery of tests and concluded that she did not have CTS. The results were sent to the company. Although the employer received her physician’s report that she did not have CTS, the company rescinded its job offer based on the information from the contract medical examiner and did not respond to her request for reconsideration. The EEOC lawsuit also charged the employer with violating the Americans with Disabilities Act (“ADA”). The ADA violation arose from the company’s refusal to hire the individual for the memo clerk position because it regarded her as having CTS.
The GINA violation stemmed from the use of an employment questionnaire that requested family medical information, even though it appears that the contract medical examiner’s report about the possibility of the individual having CTS rather than the family medical information was the reason for the rescission of the employment offer. An EEOC regional attorney commenting on the case said: “Although GINA has been law since 2009; many employers still do not understand that requesting family medical history, even through a contract medical examiner, violates the law.”
In addition to payment of the $50,000 settlement, the employer also agreed to take specified actions intended to prevent future discrimination. The company agreed to post an anti-discrimination notice to employees, disseminate anti-discrimination policies to employees, and provide anti-discrimination training to employees with hiring responsibilities.
Given the EEOC’s statements, employers that haven’t done so recently may want to review their employment forms and materials to ensure that they are not impermissibly requesting genetic information, such as family medical history. In addition, employers that use the services of an outside entity such as contract medical examiner may want to obtain copies of any forms or questionnaires those entities give to employees or prospective employees to complete to ensure that the information requested does not violate GINA. Because GINA applies to employers an external entity such as a contract medical examiner may not be familiar with the requirements and may not have changed its forms (or procedures). Finally, employers may already have genetic information in their files from documents completed prior to the enactment of GINA. Although not required to do so, employers may want to remove the genetic information the next time the file is accessed. Removing genetic information from files can reduce the potential for an impermissible use or disclosure.