The Genetic Information and Nondiscrimination Act (GINA) was enacted in 2008 and became effective for employment purposes on November 21, 2009. GINA makes it unlawful for an employer to “request, require, or purchase” an individual’s genetic information, which includes the “manifestation of a disease or disorder” in the individuals’ family members. While there is a sizeable list of prohibitions that GINA has put in place, the biggest prohibition from the “everyday” employer’s perspective is that an employer may not delve into an applicant or employee’s family medical history.
Since GINA went into effect, the Equal Employment Opportunity Commission (EEOC) has received very few charges alleging employment discrimination based upon genetic information (a little more than 700). During Fiscal Year 2012, the EEOC received only 280 GINA charges, which represents less than half a percent of all private sector charges.
Now, the EEOC has filed its first class action lawsuit alleging GINA violations and in that lawsuit has claimed that a New York nursing home violated GINA by asking prospective and current employees for family medical histories during pre-employment and annual medical exams in EEOC v. Founders Pavilion, Inc., No. 13-6250 (W.D.N.Y. May 16, 2013). In its Complaint against the skilled nursing and rehabilitation facility, the EEOC alleges that after extending job offers, Founders required the individuals to undergo medical examinations which delved into family medical histories. Founder’s employees were similarly asked about family medical histories during required annual exams and return to work exams after medical leaves. The EEOC has claim a class of applicant and employees have been asked to provide genetic information in violation of GINA. If this lawsuit goes forward, it will be the first EEOC litigation on the subject. One prior lawsuit that the EEOC had filed on behalf of a private litigant was settled for $50,000. We will monitor this litigation for relevant developments.