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First GINA Lawsuit by EEOC Results in Consent Decree

May 31, 2013

The EEOC is increasing its focus on its enforcement of the Genetic Nondiscrimination Act (“GINA”), which prohibits discrimination against employees or applicants because of genetic information such as family medical history.  On May 7, 2013, the EEOC announced that it settled its first lawsuit filed under GINA.  The matter involved an employee in a temporary position who applied for a permanent job with the employer.  After the company offered her permanent employment, it sent her for a pre-employment drug test and physical.  She was asked to fill out a questionnaire and disclose the existence of disorders in her family medical history.  The questionnaire asked about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and mental disorders in her family.  She also had to undergo a medical exam, which showed that she had carpal tunnel syndrome.  The employer rescinded its job offer because of this condition.  The EEOC sued, alleging the company violated GINA, which prohibits employer’s from basing an employment action on a person’s genetic makeup.  Family medical history questions reveal genetic makeup.   Under the consent decree, the employer agreed to pay the worker $50,000 and take actions to prevent discrimination, such as posting an anti-discrimination notice, disseminating anti-discrimination policies to employees and providing anti-discrimination training to employees with hiring responsibilities.

A week later, on May 16, 2013, the EEOC filed a second lawsuit involving class claims alleging that an employer violated GINA by conducting post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired. As part of this exam, it was alleged that the employer requested family medical history, a form of prohibited genetic information.  Given the EEOC’s keen interest in GINA,  employers should be cautious about the questions asked when requiring employees to undergo medical examinations.