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GINA Enforcement

Carrie Barron

The Equal Employment Opportunity Commission recently announced the filing of a class action lawsuit against The Founders Pavilion, Inc., a Corning, NY, nursing and rehabilitation center, for, violations of the Genetic Information Nondiscrimination Act (GINA), by asking for genetic information during the hiring process. This is the EEOC’s second such lawsuit ever.  The first, against Fabricut, Inc., in Tulsa, OK, was settled via consent decree earlier this month.

Title II of GINA, which is enforced by the EEOC, prevents employers from demanding genetic information, including family medical history, and using that information in the hiring process.  (Title I, which addresses the use of genetic information in health insurance, is regulated by the Departments of Labor and Health and Human Services, and the Treasury.) Genetic information includes information about an individual’s genetic tests and family medical history.  An employer may not use genetic information to make an employment decision because genetic information is not relevant to an individual’s current ability to work. It is also illegal to harass a person because of his or her genetic information or retaliate against a person for opposing discriminatory conduct.

In Founders Pavilion, the nursing home conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired.  As part of this exam, Founders requested family medical history. The EEOC also charged the nursing home with discriminating against women because they were pregnant or had perceived disabilities.

In Fabricut, the EEOC accused the company of using genetic information gathered post-offer, pre-employment in the hiring process.  The parties reached a consent decree soon after the suit was filed.  In a statement issued by Fabricut, the human resources denied that it engaged in any discriminatory conduct and asserted that the genetic information in question had been obtained by a third party. However, employers are prohibited from using genetic information in the employment process even it is gathered by a third party, even if the employer is not aware that information is being gathered since employers are responsible for hiring third parties who abide by the law.

Although GINA was signed into law by President George W. Bush in 2008, the EEOC’s Strategic Enforcement Plan for 2013-2016 recently identified six national priorities, which includes genetic discrimination.

 

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