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Jan 20, 2014

By Elizabeth Tempio Clement

Just 10 months after the Equal Employment Opportunity Commission filed its first systemic lawsuit alleging violations of the Genetic Information Nondiscrimination Act (GINA) against a nursing and rehabilitation care facility, the agency settled the case for $370,000.

As stated by the Commission in its press release, “Employers should take heed of this settlement because there are real consequences to asking applicants or employee[s] for their family medical history.”

Indeed, this litigation signals to employers the EEOC’s commitment to pursuing GINA cases “to the fullest extent of the law to ensure that such genetic inquiries are never made of applicants or employees.”

Violations of GINA, ADA and Title VII

As we previously reported on May 16, 2013, the EEOC filed its first class action lawsuit under GINA against Founders Pavilion, Inc., a 120-bed skilled nursing and rehabilitation facility in Corning, New York. The lawsuit alleged that the facility violated GINA by conducting a post-offer, pre-employment medical exam that included questions about the applicant’s family medical history and then requiring employees to repeat this exam annually.

The EEOC claimed that this conduct violated GINA because GINA makes it illegal to use genetic information — which includes an individual’s genetic tests, family medical history, and the genetic tests of his or her family members — in making employment decisions and also restricts employers from requesting genetic information from applicants or employees.

The lawsuit further alleged that the facility violated Title VII of the Civil Rights Act and the Americans with Disabilities Act by refusing to hire and/or firing women because they were pregnant or had perceived disabilities.

On January 9, 2014, U.S. District Judge Charles Siragusa signed off on a consent decree filed in the United States District Court for the Western District of New York resolving this matter. The consent decree provides that the facility will pay $110,400 to compensate 138 people from whom the company allegedly sought genetic information through the use of an application form that contained a “Family History” section.

Significance for employers

The facility will pay an additional $259,600 to five individuals whom it allegedly fired or failed to hire for reasons prohibited by Title VII or the ADA. The consent decree also includes numerous non-monetary terms, including notice, training, and reporting requirements.

Although the facility sold its Corning, New York nursing facility to a separate corporation in July 2013, the non-monetary terms of the consent decree are binding on the original company for five years. Accordingly, the company must abide by these terms if it resumes conducting business at any point during that time frame. Additionally, the non-party purchasing company has agreed to revise its anti-discrimination policies and conduct anti-bias training.

This litigation is significant for employers because it reaffirms the EEOC’s focus on the six national priorities set forth in its Strategic Enforcement Plan, which includes addressing “emerging and developing issues” such as genetic discrimination.

To ensure compliance with GINA, employers should confirm that they are not requesting medical history from applicants or employees at any time during the hiring process or employment, including through a third-party provider or examiner.

This was originally published on Littler Mendelson’s Health Care Employment Counsel blog© 2013 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.

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