By: Clark Smith

The EEOC is now going after companies for violating the Genetic Information Nondiscrimination Act.  Passed in 2008, GINA bars employers from requesting, requiring, or even purchasing genetic information from a potential or present employee, and from making employment decisions based on the genetic information.

What does genetic information mean?  The EEOC reads the term broadly to include genetic testing about not only employees or applicants, but also about their families.  The term includes information about prior or present diseases as well.  Even participation in clinical research falls within the meaning.  Finally, a family member includes relatives up to the 4th degree, as well as spouses and dependents (adoptive or otherwise).  Importantly, however, genetic information does not include information about a person’s sex, age, race, or ethnicity.

In May, the EEOC filed its first ever GINA enforcement action against Tulsa’s Fabricut, Inc., a major fabrics manufacturer.  The Commission claimed that Fabricut committed genetic discrimination against a potential hire when it asked for her family medical history in its post-offer medical examination.

Fabricut made its job offer contingent on the applicant taking a medical examination through its contract medical examiner.  The examination included a questionnaire that asked about her family’s medical history, including whether anyone in her family had suffered from heart disease, hypertension, cancer diabetes, and mental disorders.  Fabricut rescinded its job offer after the examination concluded that the applicant suffered from carpal tunnel syndrome.

The EEOC found cause to pursue the applicant’s claims for discrimination under both GINA and ADA.  The disability claim was based on the Commission’s finding that Fabricut had rescinded the job offer because of its perception that the applicant suffered from carpal tunnel syndrome.  Once Fabricut appreciated the depth of the GINA claim, it proactively engaged the Commission in conciliation, and the suit settled the same day it was filed.  Fabricut agreed to pay $50,000 in damages, and also agreed to post and distribute anti-discrimination policies around its workplaces.

Although the terms of the settlement may seem modest, the GINA claim was the real headliner here.  The claim was a shot across the bow to employers that the Commission is serious about pursuing GINA violators.  Fast on the heels of the Fabricut suit, the Commission filed a GINA class action against a nursing home in upstate New York.  This suit targets the nursing home’s practice of requiring both applicants and employees to undergo annual medical examinations that include requests for family medical information.

What should employers make of the EEOC’s newfound enthusiasm for GINA claims?  For one thing, the Commission pursues GINA claims in tandem with other violations.  For instance, it claims that the nursing home also violated the ADA and Title VII.  To date, the Commission has not pursued any stand‑alone GINA actions.

Employers should pay heed to potential GINA violations in their employees’ medical examinations.  Inquiring about mom’s medical history always seemed a bit superfluous for a grocery stocker position; now, it’s against the law.  Note also that an employer can shoulder the blame even where it farms the examinations out to a contract examiner, as was the case in Fabricut.  If you contract this work out, make sure to review the contents of the medical exam with the medical provider to iron out any potential GINA violations.

Finally, take note that GINA prohibits more than discriminating against employees and applicants based on their genetic information.  The simple act of collecting the genetic information can constitute a GINA violation.

If you have further questions regarding GINA, please contact your Seyfarth attorney or Clark Smith to discuss further.