On January 13, 2014, the U.S. Equal Employment Opportunity Commission (EEOC), announced the resolution of a lawsuit it brought against a New York nursing and rehabilitation center. Under the terms of the settlement, the center must pay $110,400 to 138 employees who were asked to provide family medical histories as part of pre-employment medical exams. Arguing that family medical histories fall under the definition of “genetic information,” the EEOC brought suit under the federal Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act. At the same time, the EEOC brought suit under the Civil Rights Act of 1964 (Title VII) on behalf of three employees denied employment or fired because they were pregnant. The settlement is noteworthy because it is the first “systemic” GINA lawsuit filed by the EEOC. A systemic violation is one in which an employer applies an unlawful policy to a group of applicants or employees.

The GINA prevents employers from requesting genetic information or making employment decisions based on genetic information. The law, passed by Congress in 2008, prohibits employers from discriminating against employees based on their “genetic information,” and from acquiring employees’ genetic information, subject to enumerated exceptions in the statute. In the EEOC’s case, the employer had requested and acquired genetic information “…as part of its pre-employment, return-to-work and annual medical exams of its staff …” In the press release announcing the settlement, EEOC General Counsel David Lopez said, “Employers need to be aware that GINA prohibits requesting family medical history. When illegal questions are required as part of the hiring process, the EEOC will be vigilant in ensuring that no one is denied employment opportunities on a prohibited basis.”

GINA defines “genetic information” broadly:

The term “genetic information” means, with respect to any individual, information about:

(i) such individual’s genetic tests,

(ii) the genetic tests of family members of such individual, and

(iii) the manifestation of a disease or disorder in family members of such individual.

The statute authorizes employees to consent (must be written) to the collection of genetic information. However, any attempt by an employer to discipline a non-consenting employee is likely a violation of the law. The statute also authorizes employers to collect genetic information necessary to certify a “serious health condition” under the Family and Medical Leave Act or when such information is requested as part of a services provided under an employer’s wellness program.

If your employer requests your own genetic testing formation or those of your family members, or, if your employer requests or gathers information about family members’ diseases or disorders, you should consult an attorney.

Nicholas Fairweather

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