Update: The U.S. Equal Employment Opportunity Commission settled this case on Jan. 10, 2014 when Founders Pavilion Inc. agreed to a five-year consent decree in which it will provide a fund of $110,400 for distribution to 138 individuals who were asked for their genetic information and $259,600 to five individuals whom the EEOC alleged were fired or denied hire in violation of the ADA or Title VII.
Why would an employer ask such a question? To find out if the applicant could have a genetic predisposition for a disease that could lead to higher medical expenses down the road. Many employers would simply throw the application into the garbage if an applicant answered the question affirmatively.
So-called “genetic discrimination” has been illegal since the Genetic Information Nondiscrimination Act (GINA) was signed into law by former President George W. Bush on May 21, 2008. However, the U.S. Equal Employment Opportunity Commission (EEOC), the authority responsible for enforcing GINA, has done little to enforce it. Until now.
One of the six national priorities identified in the EEOC’s strategic plan is to address emerging and developing issues in equal employment law, including the problem of genetic discrimination.
The EEOC filed and settled its first GINA lawsuit on the same day earlier this month when it reached a consent decree with a Tulsa, Oklahoma company, Fabicut, Inc. Now the EEOC has filed its second federal GINA lawsuit and its first Class Genetic Information Discrimination Suit.
The EEOC alleges that Founder’s Pavilion, Inc., a Corning, NY, nursing and rehabilitation center, violated GINA by asking for genetic information during the hiring process. Founders is also charged with violating the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.
Founders allegedly conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired. As part of this exam, Founders requested family medical history, a form of prohibited genetic information.
The lawsuit alleges that Founders fired two women because of perceived disabilities and fired another employee after it refused to accommodate her during her probationary period, all in violation of the ADA.
Founders also allegedly either refused to hire or fired three women because they were pregnant, in violation of Title VII.
The EEOC filed the lawsuit in federal court after it was unable to reach a pre-litigation settlement with Founders.
GINA prevents employers from demanding genetic information, including family medical history, and using that information in the hiring process.
“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. “Here, not only did the employer ask for prohibited information, it also discriminated against individuals with disabilities or perceived disabilities as well as pregnant women.”
GINA also forbids unions and labor organizations from discriminating on the basis of genetic information.
Because some genetic traits are most prevalent in particular groups, members of a particular group may be stigmatized or discriminated against as a result of that genetic information. This form of discrimination was evident in the 1970s, which saw the advent of programs to screen and identify carriers of sickle-cell anemia, a disease which afflicts African-Americans. In the early 1970s, some state legislatures began mandating genetic screening of all African-Americans for sickle-cell anemia, leading to discrimination and unnecessary fear.
Furthermore, genetic history does not always equal genetic future. As a result of rapid advances in technology, there is far less certainty today that any individual will inherit or be incapacitated by a genetic disease.
* Patricia G. Barnes is the author of Surviving Bullies, Queen Bees & Psychopaths in the Workplace.