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This Is NOT Your Parents' Job Application
By Melanie Renken on June 3, 2013 at 2:14 PM

GINA Blog PostWhat does your mother’s high blood pressure have to do with your job protection? According to the Equal Employment Opportunity Commission (“EEOC”): everything.

A virtually unknown and unused federal anti-discrimination statute—which applies to employers with fifteen (15) or more employees—is quickly taking center stage with the EEOC. For the second time in a month, the EEOC has filed suit alleging violations of the Genetic Information Nondiscrimination Act (“GINA”). 

The cases—EEOC v. Founders Pavilion, Inc. and EEOC v. Fabricut Inc.—challenge the defendant employers’ practices of requiring employees to answer questions about their family medical histories in conjunction with pre-employment examinations. In both cases, the employers required employees to submit to pre-employment medical examinations that included inquiries about family medical history—the results of which were given to the employers for consideration in the employment process. In fact, Founders Pavilion required this information in conjunction with its employees’ return-to-work and annual medical examinations.

Fabricut, which the EEOC filed on behalf of one individual, settled for $50,000.00 and injunctive relief within days of its filing. Founders Pavilion, on the other hand, is the EEOC’s first class lawsuit under GINA and has not been subject to any substantive rulings, given its recent filing. That being said, GINA is particularly clear on what is prohibited conduct under the Act.

Not surprisingly, GINA prohibits discrimination and harassment due to a person’s genetic information. (Genetic information includes family medical history and various information related to genetic testing.) Also not surprising is that GINA prohibits employers from retaliating against employees who file charges of discrimination or otherwise oppose discrimination based on genetic information.

What may be surprising, however, is that GINA prohibits employers from even acquiring genetic information about their employees. In other words, except under limited circumstances, employers should not receive reports from employees’ physicians that contain genetic information.

The Act does provide for some exceptions, such as certification for Family and Medical Leave Act (“FMLA”) leave to care for a family member and voluntary wellness programs (provided that certain conditions are met). Perhaps most importantly, overhearing an employee talking about a family member’s illness will not subject the employer to liability (unless, of course, the employer discriminates against or harasses the employee based on that information).

The bottom line: if pre-employment, return-to-work or annual medical examinations are part and parcel of your employment practices, limit the information that you receive from the physicians. At the end of the day, the employer need only know one thing—whether an employee is fit for duty. The rest should stay locked in the physician’s files.

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