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Employers Eyeing First GINA Cases for Further Guidance

The Genetic Information Nondiscrimination Act of 2008 (GINA) makes it illegal to discriminate against employees or applicants based on genetic information. Title II of GINA prohibits the use of genetic information in making employment decision, restricts employers and other entities from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information. Over the course of the past few years, the EEOC has filed two cases against employers, alleging violation of this particular Act. 

As we previously reported to you, in May, 2013, the U.S. Equal Employment Opportunity Commission (EEOC)  filed a suit against an employer, claiming that the employer violated GINA by requesting family medical information pre-employment, after returning to work from absence, and in its annual medical exams of employees. The EEOC also alleged that the employer violated the Americans with Disabilities Act (ADA) when it allegedly perceived two separate employees as disabled, and failed to provide a reasonable accommodation. Lastly, the employer is accused of violating Title VII of the Civil Rights of 1964 (Title VII) when it withdrew offers of employment allegedly based on pregnancy. 

Since the law is still relatively new, many employers and employment law attorneys alike have been following the case, eager to see how the courts will treat these new claims. It appears, however, that the wait will continue. On August 16, 2013, the employer was granted an extension to respond to the EEOC’s complaint, so the case has yet to be adjudicated on its merits. There are further indications that the parties may be engaged in settlement negotiations.

There has only been one other case filed by the EEOC since 2008 when GINA went into effect. In EEOC v. Fabricut, 12-CV-248-PJC (May 7, 2013), the EEOC alleged the employer violated GINA when it requested family medical information post job offer. Further, the EEOC alleged the employer violated the ADA when it refused to hire a memo clerk because it regarded her as having carpal tunnel syndrome. The case was settled for $50,000.

Employers should ensure that their employment policies, practices, and processes are up-to-date and comply with applicable state and federal law, including GINA. Any employer who requires pre-employment medical examinations, in particular, should be mindful of these types of lawsuits, and revisit their policies, practices, and processes to ensure appropriate handling. 

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