EEOC Gets Enforcement Ball Rolling on Genetic Privacy Violations

The Equal Employment Opportunity Commission (EEOC) has finally delivered on its promise to enforce the Genetic Information Nondiscrimination Act (GINA). Even though Congress passed the law back in 2008, enforcement has been virtually non-existent until recently. Last month, the EEOC announced that it had filed lawsuits against two employers for GINA violations involving medical exams.

As a reminder, GINA prohibits the use of genetic information in making employment decisions in any aspect of employment, such as hiring, firing, promotions, or any other term or condition of employment. Genetic information not only includes information about genetic testing results, but also includes inquiries into the applicant’s family medical history.

In both cases, the defendant-employers required applicants to submit to pre-employment medical exams, which included family medical history questions.  In the case against defendant Fabricut, Inc., the medical examiner’s questionnaire allegedly inquired about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and other disorders in the applicant’s family.

Fabricut, Inc. settled the suit for $50,000 while maintaining that it was not aware of the unrelated medical examiner’s request for family history information in the first place and that it never considered such medical history as part of the hiring process.

Despite the lack of intent by the defendant, the EEOC still found the mere use of the medical history questionnaire a significant GINA violation. “GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law,” said Elizabeth Grossman, the regional attorney in the EEOC’s New York District Office.

For employers, these suits should certainly be a “wake up call.” We encourage all employers to review their policies and procedures to ensure that all medical-related requests comply with GINA.  When dealing with third parties, employers can take advantage of a safe harbor provision in GINA by including language in all medical requests that instructs employees/applicants to refrain from answering any questions regarding family medical history and genetic testing.

If you have any questions about the EEOC recent enforcement actions or would like to discuss your company’s GINA compliance, please contact me, Gary Young, or the Scarinci Hollenbeck attorney with whom you work.