Last month, Founders Pavilion Inc. paid $370,000 to settle a U.S. Equal Employment Opportunity Commission lawsuit in which Founders Pavilion requested family medical history on pre-employment medical exams of applicants.
Since the enactment of the Genetic Information Nondiscrimination Act in 2008, the EEOC has received more than 700 claims of violations, and yet many employers still do not realize that requesting family medical history violates federal law. Business owners need to be aware that the EEOC has made genetic discrimination one of its top national priorities.
Here are some common questions, starting with the basics:
What is GINA?
It is a federal law that prohibits the use of genetic information in making decisions related to employment (hiring, firing, pay, promotions and benefits).
It restricts employers from requesting, requiring or purchasing genetic information about employees, and it prohibits harassment and retaliation of an applicant or employee because of genetic information. GINA applies to Idaho employers with 15 or more employees. There is a similar Idaho statute (I.C. § 39-8301), but no businesses have ever been sued under it.
Define ‘genetic information’
Genetic information includes an employee’s genetic tests, the genetic tests of an employee’s family members, and an employee’s medical history. Medical history is included in GINA so that an employer cannot use this information to determine whether someone has an increased risk of a disease or disorder.
Genetic information does not include information about a person’s sex, age, race or ethnicity. Tests for HIV, drugs, alcohol and cholesterol are not genetic tests.
Why was GINA necessary?
Now more than ever, people can obtain genetic testing to determine whether they or their families are at risk for certain diseases or disorders. With the expansion of genetic testing, Congress decided that an employee’s genetic information needed to be protected so that employees would not fear adverse employment decisions caused by genetic test results.
Can an employer legally obtain genetic information?
Yes. GINA provides six exceptions for obtaining an employee’s genetic information:
- An employer acquires an employee’s genetic information inadvertently. For example, it is not a violation to overhear that an employee’s relative has cancer.
- The employer voluntarily offers health or genetic services.
- An employee takes leave under the Family Medical Leave Act and must provide medical information for the certification process.
- The genetic information is publicly available, such as in the newspaper or on the Internet, and the employer comes across the information inadvertently.
- Genetic monitoring programs required by law or the employer provide voluntary services to monitor the effects of toxic substances in the workplace.
- Employers engage in DNA testing for law-enforcement purposes.
What should employers do to avoid running afoul of GINA?
GINA violation claims accounted for only 0.3 percent of total claims brought before the EEOC in 2012. Roughly 85 percent of the GINA claims brought in 2012 lacked merit or were settled.
Although GINA claims are infrequent, it is still a good practice for employers to be aware of the legal implications of acquiring an employee’s genetic information. This area of law will likely grow as genetic testing becomes more widely available.
Employers should add “genetic information” to the list of protected classes in their nondiscrimination and antiharassment policies. It is also crucial that employers ensure employee physicals do not include questions about medical history or genetics.
Although it may be reasonable to require a fitness test to ensure an employee can meet the job’s standards, the test cannot include the employee’s family medical history or genetic information.
A word of caution to employees
All employees should be cautious of any day-to-day discussions in the workplace that involve their personal or family medical histories.
Karen Sheehan is a trial attorney at Gjording Fouser PLLC. You can learn more about her practice and the firm by visiting gfidaholaw.com.