January 22, 2014
Last week the Equal Employment Opportunity Commission (EEOC) announced a settlement and consent decree in the first lawsuit filed by the agency alleging systemic discrimination in violation of Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). The settlement and press release suggest that the EEOC intends to more vigorously enforce the GINA. This Alert will provide a brief GINA overview, will review the EEOC’s allegations and settlement details, and will outline several practical considerations.
Title II of the GINA applies to employers with 15 or more employees and limits their ability to request or use genetic information. Among other things, a covered employer (1) may not request that an applicant or employee provide genetic information, (2) is strictly prohibited from using genetic information in making employment decisions, (3) must treat any genetic information it does possess as confidential and (4) may not disclose genetic information except in a few specifically enumerated circumstances.
Under the GINA, “genetic information” means information about an individual’s genetic tests, family medical history, and the genetic tests of his or her family members. Genetic information does not include information about the sex or age of the individual, the sex or age of family members, or information about the race or ethnicity of the individual or family members that is not derived from a genetic test.
The EEOC filed the lawsuit in May 2013 against a nursing and rehabilitation center in New York that it claimed had violated the GINA by requesting family medical history information during post-offer, pre-employment medical exams, and during annual follow-up medical exams for those hired. The EEOC asserted that the employer’s practice constituted “systemic discrimination” and pursued the lawsuit on behalf of a class of alleged victims. (The EEOC defines “systemic discrimination” as a “pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.”) The lawsuit also alleged violations of the ADA and Title VII. Pursuant to the terms approved by the court, the employer will pay $110,400 to settle the GINA claims, which amount will be distributed to a class of 138 alleged victims. (The settlement also includes payment of $259,600 to resolve the ADA and Title VII allegations.) Further, the consent decree, which will remain in effect for five years, also requires the employer to revise its anti-discrimination policies and to provide training to all employees.
There are a number of practical takeaways from settlement, and the publicity surrounding it. First, given that the EEOC appears to be taking a more active role in enforcing the GINA, employers ought to review their practices to insure compliance with the GINA’s prohibition on requesting family medical history from applicants and employees.
Second, employers should ensure that their policies regarding applicant and employee medical information and required medical exams comply with GINA. When an employer does seek to acquire medical information, the employer should include the “safe harbor” language detailed in the GINA implementing regulations. See 29 CFR §1635.8(b)(1)(i)(B). Where an employer uses this or a similar safe harbor disclaimer, “any receipt of genetic information in response to the request for medical information will be deemed inadvertent.” Third, employers should note that the DOL’s FMLA forms released in 2013 do not contain this language. Thus, to assure GINA compliance, employers should provide it as a separate document.
Finally, employers should also update their employee handbooks to state that discrimination on the basis of genetic information is prohibited.
Bullard Law will continue to monitor GINA compliance and enforcement developments. Please feel free to contact us anytime with any questions about the GINA or any other labor, employment, or benefits issues of interest or concern to you.
~J. CHRIS DUCKWORTH