By Clark Smith

Back in September, we blogged about the EEOC’s recent enforcement of the Genetic Information Nondiscrimination Act.  GINA prohibits employers from requesting genetic information from applicants or employees, and from making employment decisions based on the genetic information.  In May 2013, the Commission settled its first GINA‑based action against a Tulsa fabric manufacturer, Fabricut, Inc.  Last month, the EEOC settled another suit against Founders Pavilion, a New York nursing home, in which the Commission brought systemic GINA violations for the first time.

The Commission brought the Founders Pavilion action in May after a former employee claimed violations of the ADA, Title VII, and GINA.  After a lengthy investigation, the Commission filed suit in the Western District of New York and included allegations from five other former employees, as well as a company‑wide claim of GINA violations.

The specific GINA claims against Founders Pavilion were straightforward.  The company required prospective hires to provide family history information as part of their post‑offer, pre‑employment medical evaluations.  The former employees alleged that this violated GINA’s prohibitions against collecting genetic information.  The Commission’s investigation also revealed a systemic failure by Founders Pavilion to post GINA‑related notices at the workplace.

After months of negotiations, the parties entered into a consent decree last month to settle the lawsuit.  Under the terms of the agreement, Founders Pavilion will pay the six former employees over $250,000 to settle the ADA and Title VII claims.  More noteworthy, the company agreed to pay over $100,000 to the 138 employees who were determined to have been required to provide genetic information in violation of GINA.  And although Founders Pavilion is currently out of business (sold to another company), it agreed to post required GINA notices around the workplace should it become active again.

We view both the Fabricut and Founders Pavilion cases as a shot across the bow alerting employers that the EEOC will continue to investigate and prosecute GINA enforcement actions.  When the EEOC issued its six policy directives for 2013, it highlighted addressing emerging and developing issues in employment law.  Its recent GINA enforcement campaign is a clear sign to employers that genetic information violations are on its radar.

The settlement offers three key takeaways for employers.  First, many companies could simply be unaware of GINA’s prohibitions.  A quick review of hiring procedures should identify any problem areas, such as eliminating inquiries into an applicant’s family health history.  Second, the EEOC is now bringing GINA claims in tandem with ADA and Title VII claims.  While these more traditional claims in Founders Pavilion were limited to six employees, the Commission hit the company with a six-figure settlement for its systematic, company‑wide GINA violations.  Third, Founders Pavilion highlights the fact that GINA prohibits the collection of genetic information, and does not simply bar discrimination based on that information.

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