Executive Summary: On January 13, 2014, the Equal Employment Opportunity Commission ("EEOC") announced the former operator of a nursing home and rehabilitation center in Corning, New York had agreed to pay $370,000 to settle a lawsuit filed by the EEOC alleging violations of the Genetic Information Nondiscrimination Act ("GINA"). In the lawsuit, the EEOC alleged the nursing home operator requested family medical history as part of its post-offer, pre-employment medical exams of applicants. The EEOC also claimed that the nursing home operator fired two employees because they were perceived to be disabled, in violation of the Americans with Disabilities Act ("ADA"), and refused to hire or fired three women because they were pregnant, in violation of the Title VII of the Civil Rights Act of 1964 ("Title VII").
In addition to the monetary portion, in the five-year consent decree resolving the suit the nursing home operator agreed to revise its anti-discrimination policies, include specific references to genetic information discrimination, disability discrimination, and pregnancy discrimination laws, and include a complaint and investigation procedure for employee complaints of discrimination. The employer will also provide anti-discrimination training to all of its employees.
The lawsuit, which is only the third suit filed by the EEOC under GINA, stands as a warning to employers as to the types of medical questions the EEOC views as impermissible under GINA. Passed by Congress in 2008 and enforced by the EEOC, GINA prohibits employers from requesting genetic information or making employment decisions based on genetic information. At the time of its enactment by Congress, many considered GINA to be one of the rare instances in which the law was actually ahead of the available technology. Indeed, the EEOC's most recent enforcement statistics show GINA is alleged in only 0.3% of the charges processed by the Commission.
Nevertheless, this lawsuit, and the sizeable amount the nursing home operator was forced to pay to resolve it, show that the EEOC is serious about preventing employers from requesting the protected information. In the press release, EEOC general counsel David Lopez stated, "Employers need to be aware that GINA prohibits requesting family medical history. When illegal questions are required as part of the hiring process, the EEOC will be vigilant in ensuring that no one is denied employment opportunities on a prohibited basis."
In light of this development, employers are advised review their application and hiring procedures to identify and remove any potentially impermissible requests for information, including family medical history. According to the EEOC, such requests would include any question designed to elicit information about the manifestation of a disease or disorder in an individual's family members. Impermissible requests also include information relating to such things as an individual's use of assisted reproductive technology or the individual's participation in clinical research that includes genetic services by the individual or a family member of the individual. Employers should also review their internal processes to ensure impermissible information is not being utilized as the basis for decisions relating any aspects of employment, including hiring, firing, pay, job assignments, promotions, or the provision of other benefits such as health coverage. Failing to take these precautionary steps can result in the employer incurring substantial costs and expenses to defend against administrative enforcement actions by the EEOC and/or lawsuits brought by private litigants.