• EEOC Files First GINA Lawsuits
  • June 20, 2013
  • Law Firm: Kaufman Canoles A Professional Corporation - Norfolk Office
  • Although the Genetic Information Nondiscrimination Act ('GINA') has been on the books since November of 2009, the Equal Employment Opportunity Commission ('EEOC') had not filed a lawsuit against an employer alleging genetic discrimination...until now.

    In May of 2013, the EEOC filed a lawsuit against an Oklahoma fabric distributor. According to the lawsuit, a temporary employee applied for, and received, an offer of permanent employment as a memo clerk. During a post-offer medical examination, the employee was required to fill out a questionnaire that included a host of questions about her family medical history, including whether any family member suffered from heart disease, hypertension, cancer, tuberculosis, diabetes, and the like. During the examination, the doctor identified possible signs of carpal tunnel syndrome and suggested further evaluation. Although the employee's personal doctor found no indication of carpal tunnel syndrome, the employer rescinded its offer of employment based on its belief that the employee did, in fact, suffer from the syndrome. The lawsuit started as a claim for disability discrimination under the Americans with Disabilities Act ('ADA'); however, during its investigation, the EEOC learned of the family medical history questionnaire and added a claim under GINA. The parties reached a quick settlement to the tune of $50,000 and an agreement by the employer to provide certain notices and training to curb future discrimination.

    Less than two weeks after settling the Oklahoma case, the EEOC filed yet another GINA lawsuit against a nursing and rehabilitation center in New York. As in the Oklahoma lawsuit, the EEOC alleged that the employer inappropriately requested family medical history information during post-offer medical examinations. This lawsuit remains pending.

    Practical Pointer

    In addition to prohibiting the use of genetic information in making employment decisions, GINA prohibits employers from requesting genetic information from employees (except under limited circumstances). The EEOC has identified 'emerging and developing issues in employment law' (including genetic discrimination), as one of the six national priorities identified in its recent national Strategic Enforcement Plan. As such, employers are encouraged to audit their hiring process, including their post-offer medical examination procedures, to be sure they do not run afoul of GINA.