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Family Secrets are Safe According to EEOC

The Equal Employment Opportunity Commission (“EEOC”) brought its first case involving an employment law violation under the Genetic Information Nondiscrimination Act of 2008 (“GINA”).  GINA is a law that protects Americans from being treated unfairly by employers and health insurers based on DNA information.  The EEOC deals with enforcing the part of GINA regarding employment discrimination (Title II) which prohibits employers not only from discriminating based on genetic information but also from obtaining genetic information absent several narrow exceptions.

The case was filed on May 7, 2013 in the U.S. District Court for the Northern District of Oklahoma.  On the same day, a consent decree was also filed which is a court-sanctioned agreement and means the case was settled the day it was filed.  Under the agreement, the employer, Fabricut, Inc., will have to pay $50,000, post an anti-discrimination notice to employees, disseminate anti-discrimination policies to employees, and provide related training to employees who are involved in hiring.

In this case, a temporary employee who worked as a memo clerk for ninety days was offered a regular position at Fabricut.  After the offer, the employer followed its normal practice of sending the employee to its medical examiner for a drug test and physical.  Part of that exam included questions about the employee’s family medical history including hypertension, heart disease, and “mental disorders” among other things.  Other medical testing showed that further evaluation was needed to determine whether the employee had carpal tunnel syndrome.  The employer told the employee to go to her personal physician for testing and to give the employer the results.  The employee’s physician concluded that the employee did not have carpal tunnel but the employer rescinded the offer because the original finding of the medical examiner showed that the employee did have carpal tunnel syndrome.

The violations are twofold.  First, the employer violated GINA by requesting information about the employee’s family medical history.  Second, the employer violated the Americans with Disabilities Act by refusing to hire the employee because the employer regarded her as having a disability – carpal tunnel syndrome.

This case shows how employers can easily and inadvertently violate GINA if they are not careful, like the employer in this case.  Further, employers must be mindful of their own hiring processes, but also of the processes of their third party vendors like medical examiners.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.