Reminder that GINA Exists and that the EEOC is Watching
By Anne-Marie L. Storey, Esq.
Recently, the EEOC reported settling its first claim brought under the Genetic Information Nondiscrimination Act (GINA). In the case, the EEOC alleged discrimination against an applicant on the basis of both GINA and the ADA’s “regarded as” provision.
Here is what happened. A female worked for the employer in a temporary position as a memo clerk for 90 days. At the conclusion of the temporary assignment, she applied for permanent work in the same position. The employer offered her the position and then sent her to its medical provider for a post-offer, pre-employment physical examination and drug test. During the examination, she was asked to complete a questionnaire that asked questions about family history of certain diseases/illnesses. She was also given some testing that led the examiner to conclude that further evaluation was needed to determine whether she had carpal tunnel syndrome. She was asked to follow-up with her own physician for that additional testing and to provide the company with the results. She did that and her physician concluded she did not have carpal tunnel syndrome. Nevertheless, the employer rescinded its job offer on the basis of its own pre-employment testing that concluded she did have the condition.
The EEOC filed suit alleging the employer’s conduct violated GINA, which prohibits discrimination on the basis of genetic information, including family medical history, and which restricts employers from requesting, requiring, or purchasing such information. As an aside, the EEOC also alleged the conduct violated the ADA’s “regarded as” provision. A monetary settlement was reached in the amount of $50,000; the company also agreed to various corrective actions such as additional postings.
This case is a good reminder to employers that GINA exists. It applies to employers with 15 or more employees and covers both applicants and employees. The broad intent of the law is to protect individuals who are genetically predisposed to certain illnesses and those with latent conditions that are revealed through genetic testing.
Anne-Marie Storey | Attorney
The Graham Building | 84 Harlow Street
P.O. Box 1401 | Bangor, Maine 04402-1401
tel: 207.947.4501 | fax: 207.941.9715