August 5, 2013Client Alert

EEOC Attacks Post Offer Medical History Gathering

The Genetic Information Nondiscrimination Act of 2008 (GINA) governs the use of genetic information by health insurance plans and carriers and by employers. GINA prohibits group health plans and health insurers from denying coverage to a healthy individual or charging such a person a higher premium based solely on his or her genetic predisposition to developing a disease in the future. GINA also prohibits employers from using a person’s genetic information when making hiring, firing, job placement, or promotion decisions.


The President signed GINA into law on May 21, 2008. Despite the statute’s being in place for over five years, the U.S. Equal Employment Opportunity Commission (EEOC or Commission) had not filed any lawsuits under it until recently.


In Equal Employment Opportunity Commission v. Fabricut Inc., a lawsuit filed in May of this year, the EEOC challenged an employer’s post-offer, pre-employment medical examination process. Fabricut had offered a temporary worker a regular job with the company and, as part of the process, had sent her for a medical examination. During the medical examination, the worker had been required to complete a standard questionnaire that asked about her family medical history, including any history of conditions like hypertension, diabetes and asthma. Fabricut subsequently had rescinded the job offer, the EEOC alleged, because the company’s medical examiner had indicated the worker had carpal tunnel syndrome.


The Commission’s lawsuit alleged violations of GINA and the Americans with Disabilities Act (ADA). The EEOC claimed that Fabricut’s use of the questionnaire had violated GINA because the document inquired about family medical history. The EEOC also alleged that Fabricut had withdrawn its offer of employment based on its perception that the worker had a disability, which violated the ADA.  The parties quickly reached a settlement of the case.


Later in May of this year, the EEOC filed a second lawsuit under GINA, which still is pending. The Commission alleges that The Founders Pavilion, Inc. (Founders), a nursing and rehabilitation center in New York, violated GINA by asking for genetic information during the hiring process. The lawsuit alleges that Founders conducted post-offer, pre-employment medical examinations of applicants, which were repeated annually if the person was hired. The EEOC claims that, as part of this exam, Founders impermissibly requested family medical history in violation of GINA. The lawsuit also alleges several other violations of the ADA and Title VII of the Civil Rights Act of 1964.


Late last year, the EEOC issued a Strategic Enforcement Plan (SEP) that identifies six national priorities for the agency in emerging and developing issues in equal employment law. One of those priorities is genetic discrimination. Although the recently filed lawsuits involve more than just GINA-based claims, the clear takeaway from the filings is that the EEOC will be scrutinizing hiring practices more closely, especially pre-hire, post-offer medical examinations and whether family history information is solicited as part of those examinations. As a result, employers need to review their policies to ensure that the policies and practices of the medical practitioners they call upon to conduct the examinations are compliant with GINA.

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