Be Careful What You Ask For: EEOC Aggressively Pursues New GINA Litigation

GINA Background

The Genetic Information Nondiscrimination Act (GINA or the Act), which generally prohibits genetic information discrimination in employment, took effect for employers with more than 15 employees on November 21, 2009. The Act forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. The theory behind GINA is that an employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual’s current ability to work — even if it may affect his or her future ability.

Under GINA, genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e., family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. Genetic information also includes an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual, and the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

There are some narrow exceptions to GINA. For example, family medical history may be acquired as part of the certification process for leave under the Family and Medical Leave Act, where an employee is asking for leave to care for a family member with a serious health condition. Another safe harbor is when a company receives genetic information on an unsolicited basis or through “inadvertent discovery.” However, the law prohibits using that “inadvertently” acquired information in the hiring process.

EEOC Litigation

The Fabricut Settlement

On May 7, 2013, the EEOC settled the first ever GINA lawsuit brought against Fabricut, Inc., one of the world’s largest distributors of decorative fabrics. In its lawsuit, the EEOC alleged that Fabricut violated the Americans with Disabilities Act (ADA) when it refused to hire a woman for the position of memo clerk because it regarded her as having carpal tunnel syndrome, and also violated GINA when it asked for her family medical history in its post-offer medical examination. EEOC v. Fabricut, Inc. (Civil Case No.: 13-CV-248-CVE-PJC, N.D. Ohio).

The EEOC claimed in the suit that Rhonda Jones (Jones) worked for Fabricut in a temporary position as a memo clerk for 90 days. When her temporary assignment was coming to an end, she applied for a permanent job. Fabricut made Jones an offer of permanent employment and sent her to its contract medical examiner, Knox Laboratory, for a pre-employment drug test and physical. When Jones reported for her physical, she was required to fill out a questionnaire and disclose the existence of disorders in her family medical history. The questionnaire asked about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and “mental disorders” in her family. Jones was then subjected to medical testing, from which the examiner concluded that further evaluation was needed to determine whether Jones suffered from carpal tunnel syndrome (CTS).

Fabricut told Jones she needed to be evaluated for CTS by her personal physician and to provide the company with the results. Jones’ physician concluded that she did not have CTS. The EEOC alleged that although Jones provided this information to Fabricut, the company rescinded its job offer because Knox Labs indicated that Jones actually had CTS. Jones made a written request for reconsideration, emphasizing that she does not have CTS, but she did not receive a job at Fabricut.

According to public reports, Fabricut settled the lawsuit with the EEOC for $50,000.

The Founders Pavilion Class Action

On the heels of the Fabricut lawsuit, the EEOC filed a second case against the Founders Pavilion, Inc., a Corning, New York nursing and rehabilitation center. EEOC v. Founders Pavilion, Inc. (Case No. 6:13-cv-06250, WDNY)  The EEOC alleges that Founders violated GINA, the ADA, and Title VII when it asked for genetic information during the hiring process. According to the EEOC’s suit, Founders conducted post-offer, pre-employment medical examinations of applicants, which were repeated annually if the person was hired. As part of this examination, Founders allegedly requested family medical history, a form of prohibited genetic information.

The EEOC also alleges that Founders violated GINA by failing to post and keep posted notices that have been prepared or approved by the EEOC setting forth excerpts from or summaries of the pertinent provisions of GINA and information pertinent to the filing of a charge or complaint. This lawsuit is ongoing.

Conclusion

By filing two high profile lawsuits back to back, the EEOC has made it clear to employers that it is going to take alleged GINA violations seriously and will pursue them in court. Thus, employers should make sure that their hiring and other employment practices comply with GINA. The Arent Fox Labor & Employment group will continue to monitor developments in this area as they occur.