As part of its 2013 to 2016 Strategic Enforcement Plan, the EEOC identified addressing emerging and developing issues in EEO law and one of its six national priorities. This includes genetic discrimination. In May 2013, the EEOC filed and settled the agency’s first lawsuit to enforce genetic nondiscrimination rights afforded by Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA).
Title II prohibits the use of genetic information (i.e., “family medical history; information about an individual’s or family member’s genetic tests, such as tests to detect whether an individual has an increased risk of developing certain cancers or other diseases; and the fact that an individual or the individual’s family member has sought or received genetic counseling or has participated in clinical research that includes genetic testing.”) in making employment decisions in all aspects of employment because genetic information is not relevant to an individual’s current ability to work. Additionally, employers are prohibited from requesting, requiring, or purchasing an applicant’s or employee’s genetic information.
In EEOC v. Fabricut, an employee working as a temporary memo clerk applied for a permanent position which was initially offered. However, as part of its pre-employment medical examination, Fabricut requested family history on a variety of specific conditions. As a result of the information provided, the company also requested additional testing to rule out carpal tunnel syndrome. While the testing ruled out the syndrome, the job offer was rescinded on the basis of the pre-employment medical examination where the doctor concluded the applicant had the condition. The EEOC sued, alleging the company violated GINA and a consent decree was filed concurrently, settling the same day. The applicant also brought a claim that job offer was revoked after the carpal tunnel syndrome diagnosis, in violation of the Americans with Disabilities Act of 1990 as amended (ADA). In settling, Fabricut agreed to pay the worker $50,000 and take actions to prevent discrimination (e.g., disseminating anti-discrimination policies to employees, providing anti-discrimination training to employees with hiring responsibilities).
Since 2010, the EEOC has received 726 GINA charges. While GINA has been around for some time, many employers may still not understand that requesting family medical history violates the law. Filing of the lawsuit may have been an effective way to spread the word. This case also highlights the lose connection between conduct prohibited under GINA and under ADA. GINA prohibits both the acquisition and the use of genetic information in employment contexts. The ADA prohibits employment discrimination on the basis of disability, but defines disability broadly to include “(a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment.” Given these two definitions, it is likely that GINA and ADA claims will be brought concurrently in cases where applicants feel they are victims of genetic discrimination.
Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.