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EEOC SETTLES ITS FIRST “GINA” LAWSUIT FOR GENETIC DISCRIMINATION – An Important Lesson for Employers Re: Medical Questions of Applicants and Employees that Violate GINA?

Posted in Disability Discrimination, Discrimination, Labor Law

By:  Lizbeth V. West, Esq.

On May 7, 2013, the EEOC issued a press release announcing the settlement of a lawsuit against Fabricut, Inc., one of the world’s largest distributors of decorative fabrics. This is the first lawsuit ever filed by the EEOC alleging genetic discrimination.

According to the EEOC’s suit, Rhonda Jones worked for Fabricut in a temporary position as a memo clerk for 90 days. When her temporary assignment was coming to an end, she applied for a permanent job in that position. Fabricut made Jones an offer of permanent employment on Aug. 9, 2011, and sent her to its contract medical examiner, Knox Laboratory, for a pre-employment drug test and physical. When Jones reported for her physical, she was required to fill out a questionnaire and disclose the existence of numerous separately listed disorders in her family medical history. The questionnaire asked about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and "mental disorders" in her family. Jones was then subjected to medical testing, from which the examiner concluded that further evaluation was needed to determine whether Jones suffered from carpal tunnel syndrome (CTS).

Fabricut told Jones she needed to be evaluated for CTS by her personal physician and to provide the company with the results. Jones’s physician gave her a battery of tests and concluded that she did not have CTS. Although Jones provided this information to Fabricut, the company rescinded its job offer because Knox Labs indicated that she did have CTS. Jones made a written request for reconsideration, emphasizing that she does not have CTS, but Fabricut ignored her plea.

The EEOC argued that the medical questions posed to Jones violated the Genetic Information Nondiscrimination Act (GINA), which makes it illegal to discriminate against employees or applicants because of genetic information, which includes family medical history; and also restricts employers from requesting, requiring or purchasing such information. GINA was signed into law in 2008, and took effect in 2009.

The EEOC argued that the alleged conduct also violated the Americans with Disabilities Act (ADA), which prohibits discrimination against qualified individuals with disabilities, or individuals who are incorrectly regarded as having disabilities.

The lawsuit and consent decree settling the case were filed at the same time on May 7, 2013, in U.S. District Court for the Northern District of Oklahoma (Civil Case No.: 13-CV-248-CVE-PJC). In addition to a $50,000 payment Fabricut must pay to Jones, the company also agreed to take specified actions designed to prevent future discrimination, including the posting of an anti-discrimination notice to employees, dissemination of anti-discrimination policies to employees, and providing anti-discrimination training to employees with hiring responsibilities.

LESSON FOR EMPLOYERS: Employers should review their application and hiring documentation (particularly any post-offer, pre-hire medical evaluations) to ensure that they do not contain improper medical inquiries that could violate either GINA or the ADA. Employers should also ensure that those responsible for hiring decisions are properly trained regarding the prohibitions under GINA and the ADA.