The EEOC filed in May its first ever lawsuits alleging violations of the Genetic Information Nondiscrimination Act (GINA), both of which alleged that the employer violated GINA by including questions about family medical history in its post-offer, pre-employment medical exams.

In EEOC v. Fabricut, Inc., the employer sent an applicant to its contract medical examiner for a post-offer medical examination. The examiner's standard questionnaire asked the applicant to identify and disclose disorders in her family history, including heart disease, diabetes, and arthritis. The examiner concluded that the applicant had carpal tunnel syndrome. Although the applicant's personal physician disagreed with the diagnosis, the employer withdrew its employment offer. The EEOC sued the employer, alleging the employer violated GINA by requesting the family medical history on the questionnaire and violated the ADA by incorrectly "regarding" the applicant as having a disability. The employer settled the case immediately, entering into a consent decree with the EEOC and agreeing to pay $50,000.

The other lawsuit, EEOC v. Founders Pavilion, Inc., is a pattern or practice lawsuit alleging that a New York nursing and rehabilitation center violated GINA by requesting family medical history in its post-offer medical exams. The EEOC also alleges that the employer violated the ADA by withdrawing offers of employment based on the results of its post-offer medical exams.

GINA prohibits employers from requesting, requiring, or purchasing genetic information from applicants or employees, including family medical history. GINA, and the recent EEOC lawsuits, raise several concerns for employers:

• In both cases, the requests for family medical history were made by the third-party medical examiner on its standard questionnaires, not by the employer directly. GINA holds employers liable if third parties request genetic information from applicants or employees.
• The EEOC does not allege, in either lawsuit, that the employer ever received or used the family medical history acquired by the third-party examiner. The employment actions taken were based on the results of the medical examinations, not on the genetic information. The mere fact that the third party requested the genetic information is, in the EEOC's view, a GINA violation.
• The EEOC paired ADA claims with its GINA claims in both lawsuits, challenging the outcomes of the medical examinations conducted by the third-party providers, separate and apart from the requests for family medical history.

These lawsuits are just the beginning of what undoubtedly will be an ongoing and escalating effort by the EEOC to enforce GINA. To ensure GINA compliance, employers who use third-party medical providers should ensure that their contracts with those providers, and the providers' actual practices, do not violate GINA by allowing the providers to request family medical history or any other genetic information. Also, the GINA regulations contain sample language that an employer can use in its contracts and on its correspondence with its third-party providers to ensure that any collection or disclosure of genetic information by a third party is not a source of liability for the employer. The language can be found at 29 C.F.R. §1635.8(b)(1)(i)(B).