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Monday, 12 August 2013 14:36

EEOC Settles First Ever Lawsuit Alleging Genetic Discrimination

Do you routinely ask job applicants for their family medical history>  Do you conduct pre-employent physical examinations, or ask a propsective employee to complete a medical questionnaire?  If so, and the information you gather through these means is used to determine the applicant's position or fitness for duty, you may be in violation of the Genetic Information Nondiscrimination Act ("GINA").  On May 7, 2013, the Equal Employment Opportunity Commission filed and settled its first ever lawsuit involving discrimination based on a job applicant's genetic information.


Factual Background


Rhonda Jones ("Jones") was a temporary memo clerk for Fabricut, one of the world's largest distributors of decorative fabrics.  When her 90-day temporary position was about to expire, she applied for a permanent position.  Fabricut made Jones an offer of permanent employment, but required that she participate in a pre-employment drug test and physical exam.


As part of Jones' physical, she was required to complete a medical questionnaire which asked for the disclosure of various disorders in her family history, including any history of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and/or "mental disorders."  Jones was then required to participate in medical testing, where the medical examiner concluded that she suffered from carpal tunnel syndrome.


When learning of this information, Fabricut told Jones she had to be evaluated by her own physician regarding the carpal tunnel diagnosis and provide the company with the results.  After a number of tests, Jones' own physician concluded she did not have carpal tunnel.  Desipte having this new information, Fabricut rescinded its offer because its own medical examiner believed she did have carpal tunnel.  Jones submitted a written request for reconsideration, adamant that she did not have carpal tunnel syndrome, but was ignored.


Analysis and Disposition


Among its various other provisions, Title II of GINA prohibits the use of genetic information in making employment decisions.  The genetic information covered by GINA incudes family medical history.  The Act also prohibits employers from acquiring genetic information through purchase, request, or requirements.  In addition, GINA also prohibits employers from retaliating against employees who complain about genetic discrimination.


Because the case was officially settled the same day it was filed, it is not clear how the case would have been decided had it moved through the court process.  Regardless, Fabricut agreed to take specific action designed to prevent future discrimination, including the posting of an anti-discrimination notice to employees, the dissemination of anti-discrimination policies to employees, and also providing anti-discrimination training to its employees with hiring responsibilities.  In addition, Fabricut made a $50,000.00 payment to Jones.


What Does This Mean for Employers?


While GINA was signed into law in 2008, it never received much attention.  The Fabricut case highlights a new focus on genetic information.  It signals the very important need for employers to remain diligent and aware of GINA, the ADA, and all other employment laws when creating or utilizing certain pre-hire procedures and requirements.  Employers should re-evaluate their current pre-hire procedures to ensure they are not requiring information reqgarding family history.  If so, employers should at least ensure such information plays no role in the hiring decision.


For more information about this or another employment law topic, please contact Attorney Peter J. Culp with the Dempsey Law Firm.

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