By Kathy Bray, Esq.

Just a few months ago, the U.S. Equal Employment Opportunity Commission  (EEOC) settled the first lawsuit it had filed under the federal Genetic Information Nondiscrimination Act  (GINA).  As detailed in a May 7, 2013 press release , the EEOC disclosed that Fabricut, Inc., a fabric distributor, would pay $50,000 and provide other equitable relief to resolve the suit filed by the EEOC.

The EEOC alleged that Fabricut had refused to hire a temporary worker who had applied for a permanent position as a memo clerk, after she underwent the pre-employment, post-offer physical. The physical required the applicant to complete a questionnaire that inquired about a variety of medical conditions, including any family history of them. The exam resulted in the examiner recommending further evaluation for potential carpal tunnel syndrome (CTS). The employer relayed this recommendation to the applicant, and advised they would need a report from her treating physician after she was evaluated for carpal tunnel syndrome. She did so after her personal doctor concluded she did not have CTS. Fabricut still declined to hire her, on the belief she had CTS (based on the report from the pre-employment physical provider).

The EEOC charged Fabricut with not only violating GINA, based on discriminating against a job applicant because of genetic information (including family history), but also violating the federal Americans With Disabilities Act  (ADA), noting that employers may not discriminate on the basis of disability or discriminate against applicants incorrectly regarded as having a disability.

Some take-away wisdom for employers from this settlement is best illustrated by a quote from the EEOC’s General Counsel, David Lopez:

“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 to ensure that no one be denied a job on a prohibited basis.”

Employers were reminded of the EEOC’s vigilance a mere week after it announced the settlement in the Fabricut case. The EEOC’s press release  confirmed that it filed another lawsuit against an employer under GINA and the ADA. The suit alleged that the employer had improperly asked for the genetic information during the hiring process. Similarly to the Fabricut case, this second suit claimed that the employer had requested family medical history as part of the post-offer, pre-employment physical. Simply put, employers may not request or use genetic information during the hiring process.

This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.