The Genetic Information Nondiscrimination Act (GINA) was passed into law in 2008 and went into effect on November 21, 2009. Under GINA, it became unlawful for employers to request, require or purchase genetic information relating to an applicant for employment and/or to discriminate against applicants or employees because of genetic information. Under GINA, employers are not only prohibited from asking for genetic information from job applicants and employees, but also are prohibited from requesting genetic information related to the applicant’s or employee’s family members.
On May 16, 2013, the EEOC filed its first class action lawsuit in the United States District Court for the Western District of New York seeking to enforce GINA against an employer. According to the EEOC press release regarding the filing, in Equal Employment Opportunity Commission v. Founders Pavilion, the EEOC asserts that Founders Pavilion, a 120-bed skilled nursing and rehabilitation facility in Corning, New York, violated GINA. The specific violations identified in the EEOC Complaint filed in the case are that Founders Pavilion conducted a post-offer, pre-employment medical exam that included questions about the applicant’s family medical history and required employees to repeat this exam annually. Further, the EEOC’s Complaint contained allegations that Founders Pavilion also had violated Title VII of the Civil Rights Act and the Americans with Disabilities Act by refusing to hire and/or firing women because they were pregnant or had perceived disabilities.
In addressing the lawsuit, Elizabeth Grossman, the regional attorney in the EEOC's New York District Office, stated: "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." According to the EEOC, genetic discrimination falls under one of the agency’s national priorities identified in the EEOC’s Strategic Enforcement Plan (“SEP”), in that the plan called for the agency to address “emerging and developing issues in equal employment law.”
The filing of this lawsuit by the EEOC should serve as a reminder to prudent employers that they should review their policies and procedures to insure that they are compliant with GINA. Employers’ policies and procedures should reflect the reality that, under GINA, they may not seek information regarding medical history at any time during the hiring process or employment. This prohibition includes information that might be sought by a third-party provider or examiner on behalf of the employer.