GINA: If You Are An Employer You Should Know About It
Not many of us have come across a GINA case in our discrimination practice. At least not yet — the law is only 5+ years old.
Nonetheless, the EEOC has included GINA as one of its enforcement priorities in its Strategic Enforcement Plan (“SEP”), and it has, in fact, litigated a (small) number of such claims, which I will discuss below.
It just announced the settlement of a new GINA suit.
GINA, short for The Genetic Information Non-Discrimination Act of 2008, 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, require or purchase such genetic information and family medical history about applicants or employees.
Settlement Just Announced By The EEOC
The EEOC just announced a GINA settlement with a two-year consent decree which provides an injunction against further violations. In that regard, the company will provide GINA training to all management and human resources personnel with responsibilities related to hiring, and the EEOC will monitor the company’s compliance.
The EEOC had charged that Underground Mining, LLC, trading as Joy Mining Machinery, “after making conditional employment offers, … required applicants to undergo a post-offer medical examination. .. . Joy Mining improperly requested family medical history on its pre-placement physical form asking applicants if they had a family medical history for ‘TB, Cancer, Diabetes, Epilepsy, [and] Heart Disease.’”
A quick look at some of the relatively few previous GINA cases should be sufficient to give employment attorneys and HR folks a fairly good handle on the basics of GINA. Oh, and employers too!
The First GINA Lawsuits
The first GINA lawsuit filed by the EEOC was settled in May, 2013. The EEOC alleged in that case out of Oklahoma 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.
In mid-2014, in accordance with its SEP priorities, the EEOC filed its first systemic GINA class action against a Corning, N.Y. nursing and rehabilitation center, alleging that it conducted post-offer, pre-employment medical exams of applicants, and annual exams if the person was hired, and requested family medical history. The case was settled for $110,400.
As readers know, I write often that the EEOC, in accordance with what I call its “low hanging fruit priority,” frequently targets health care facilities under the ADA and the Pregnancy Discrimination Act (“PDA”). The EEOC also targets GINA violations by medical and health care facilities. Note that the EEOC hit the trifecta in this case: one of its attorneys said that “GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law. Here, not only did the employer ask for prohibited information, it also discriminated against individuals with disabilities or perceived disabilities as well as pregnant women.”
Other GINA Cases
The EEOC announced in late 2014 that it had settled a GINA class action brought against three California farm suppliers who required job applicants to take physical exams and fill out questionnaires which asked about medical conditions, and the applicants’ family medical histories. One applicant was required to report disability-related information and family medical history which was unrelated to the job requirements, and ultimately refused hiring “due to his perceived disability.”
It also announced that it had sued a NYC home care services agency for asking job applicants and employees for genetic information, in alleged violation of 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.”
An EEOC attorney previously cautioned employers: “The law with respect to genetic information is relatively new … Employers need to familiarize themselves on the prohibitions with respect to pre-employment inquiries and maintaining the confidentiality of medical information.”
Referring to an earlier case, another EEOC attorney said: “There are strict guidelines prohibiting inquiries into a job applicant’s medical condition and disability prior to hire. Even after hire, employers should avoid asking questions about an applicant’s medical condition if it is not job-related. With respect to genetic information – or family medical history – the law is even more restrictive in that most employers may never ask or acquire genetic information from applicants or employees.”
Learn about GINA — you will see a lot of it soon!