The Equal Employment Opportunity Commission (EEOC) recently settled a lawsuit brought under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) in Oklahoma federal court. It was the first lawsuit brought under GINA by the EEOC. GINA, which was enacted in 2009, makes it unlawful for employers to discriminate against employees or applicants based on genetic information, including family medical history. It is also unlawful for employers to request, require, or purchase genetic information of employees or applicants.
The EEOC alleged that an Oklahoma employer refused to hire a temporary employee to a permanent position after learning of the temporary employee's family medical history during a post-offer medical examination and drug test. The EEOC also alleged the employer failed to hire the temporary employee because it regarded her as disabled, in violation of the ADA. After receiving an offer of employment, the temporary employee reported for a physical conducted by the employer's contract medical examiner. During the physical, she was required to fill out a questionnaire and disclose the existence of her family medical history, including whether she had a family history of such disorders as heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and "mental disorders." Additionally, during the physical, the medical examiner concluded that further evaluation was needed to determine whether the temporary employee suffered from carpal tunnel syndrome.
The temporary employee was then evaluated by her personal physician and reported to the employer she did not, in fact, have carpal tunnel syndrome. Despite this diagnosis, the employer rescinded the job offer because the employer's medical examiner indicated that she did have carpal tunnel syndrome.
In settling the case, the employer was required to pay $50,000 to the temporary employee, take specified, affirmative action to prevent future discrimination including the posting of anti-discrimination notices, dissemination of anti-discrimination policies to employees, and providing anti-discrimination training to employees with hiring responsibilities.
The case provides a stark reminder about an employer's responsibilities under GINA. Because it is illegal to discriminate against employees or applicants on the basis of genetic information, employer would be wise to simply not have any such information - be it directly or indirectly from sources such as contract medical providers, wellness programs, or the like.
Our labor and employment section is available for any questions about GINA compliance or the application and interview process.
By Kenneth T. Short, firstname.lastname@example.org