The Equal Employment Opportunity Commission (EEOC) has settled its first systematic Genetic Information Non-Discrimination Act (GINA) lawsuit. The settlement represents the third lawsuit filed under GINA since its enactment in 2008, but it is the first to tackle widespread employment discrimination based on genetic information.
The case involved Founders Pavilion, Inc., a New York nursing and rehabilitation facility which requested that applicants present family medical history as part of the hiring process. Founders Pavilion made the request after offering positions at its facility as a condition of beginning employment. The requests were part of medical exams for applicants which required information about previous medical conditions of family members.
In addition, Founders Pavilion allegedly violated other employment discrimination laws on top of the GINA violations. The EEOC claims that the facility fired employees because of a disability in violation of the Americans with Disabilities Act (ADA) and refused to hire women because they were pregnant in violation of Title VII.
Interesting GINA Settlement Details
The EEOC first attempted to reach a pre-litigation conciliatory agreement. When efforts to reach an agreement failed, the agency filed suit in the U.S. District Court for the Western District of New York. The suit resulted in a five-year consent decree which outlines the required changes that must be made at the facility as part of the settlement.
Shortly after the lawsuit was filed, however, Founders Pavilion sold its Corning, NY facility. The consent decree will take effect should Founders Pavilion ever conduct business again. The decree would require the facility to inform employees about the lawsuit as well as post notices throughout the facility. The company would also be required to adopt and abide by a new non-discrimination policy and provide anti-discrimination training to employees. Finally, the decree would require periodic reports to the EEOC regarding discrimination complaints.
The buyer of the Founders Pavilion business, Pavilion Operations, has agreed to enter the consent decree as a non-party signatory. In doing so, Pavilion Operations agreed to make revisions to its non-discrimination policy, including adding specific provisions concerning genetic information discrimination. They have also agreed to provide a complaint and investigation procedure for employees who suspect they have been a victim of employee discrimination.
The five-year consent decree also requires payment to disgruntled employees through a settlement fund. Founders Pavilion must provide $110,400 to 138 applicants who were asked to provide genetic information in alleged violation of GINA. They must also provide $259,000 in a fund for the five employees who allegedly were refused employment based on violations of the ADA and Title VII.
GINA Prohibits Family Medical History Requests
Enacted in 2008, the Genetic Non-Discrimination Act prohibits the disclosure, use of and request for genetic information in employment applications and inquiries. The law is extensive, covering a large swath of various employment information gathering techniques, including return to work exams, annual medical exams, fitness for duty evaluations, annual physical exams, requests in response to ADA reasonable accommodations and FMLA certifications. Even questions and inquiries which do not appear to request genetic information, but make it reasonably likely that this type of information will be acquired, fall under the purview of GINA.
The EEOC has also released GINA regulations that indicate an even broader application of the law. The EEOC may consider requests made by an employer as well as any of its agents a violation of the act and could apply the GINA provisions even if the request for genetic information is made through social media or in other indirect ways.
GINA also protects employees from discrimination in health insurance based on genetic information and testing. To do so, the law amends a group of federal statutes including the Employee Retirement Income Security Act of 1974 (ERISA) as well as the Social Security Act. this means that both employers and health insurers may not discriminate via health insurance on the basis of information obtained through genetic testing.
GINA Included in the EEOC Strategic Enforcement Plan (SEP)
The EEOC routinely outlines periodic plans of enforcement which indicate it primary areas of focus over a set of fiscal years. The Strategic Enforcement Plan for Fiscal years 2013-2016 outlines six key areas the EEOC has decided to target in its enforcement efforts. The Genetic Information Non-discrimination Act is one of these six targets and employers and litigators are likely to see more GINA caes as the EEOC continues to carry out its objectives in this area.
Though GINA is not specifically mentioned among the six focus areas of the SEP, it is included as one of the “emerging and developing issues” in equal employment law, which is mentioned.
The EEOC Releases Regulations Concerning GINA Enforcement
In 2011, the Equal Employment Opportunities Commission released guidelines for the implementation of GINA as it applies to employment situations.The guidelines outline the general provisions of the law and stress what can cannot apply in a legitimate GINA discrimination case.
Of note, the regulation highlight the fact that GINA does not provide a cause of action for disparate impact, unlike other civil rights laws such as Title VII. Rather, Section 208 of the statute advises the Genetic Non-Discrimination Commission to recommend to Congress whether to provide a disparate impact cause of action. The Commission is scheduled to begin its work in May of this year.
Protection for U.S. Employees Under GINA
Employees should be concerned when an employer requests genetic information as part of the employment process. Before 2008 when the Genetic Non-Discrimination Act was passed, employees had no protection from the use of this type of information as a condition of employment. Now nearly all U.S. employees have the right to work free of discrimination based on their family medical history and personal genetic information, whether litigation results in settlement or judgement.