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THE EEOC IS “OFF TO THE GINA RACES”

Posted in Disability Discrimination, Labor Law

JUST ONE WEEK AFTER FILING (& SETTLING) IT’S FIRST EVER “GINA” LAWSUIT, IT HAS NOW FILED ITS FIRST “GINA” CLASS ACTION

By:  Lizbeth V. West, Esq.

The EEOC issued a press release on May 16, 2013 announcing that it has filed a class action against The Founders Pavilion, Inc. (“Founders”), a nursing and rehabilitation center in Corning, N.Y.

According to the EEOC’s suit, Founders conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired. As part of this exam, Founders requested family medical history, a form of prohibited genetic information. The EEOC alleges that such conduct violates the Genetic Information Nondiscrimination Act (GINA) which prevents employers from demanding genetic information, including family medical history, and using that information in the hiring process. The suit also alleges that Founders: a) fired one employee after it refused to accommodate her during her probationary period, in violation of the Americans with Disabilities Act (ADA); b) fired two women because of perceived disabilities under the ADA; and c) either refused to hire or fired three women because they were pregnant, in violation of Title VII of the Civil Rights Act of 1964.

In the press release, Elizabeth Grossman, the regional attorney in the EEOC’s New York District Office stated that "GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law." According to Ms. Grossman, not only did Founders ask for prohibited information, it also discriminated against individuals with disabilities or perceived disabilities as well as pregnant women.

The class action was filed in the U.S. District Court for the Western District of New York (Case No. 6:13-cv-06250). The Founders suit is only the second ever GINA lawsuit filed by the EEOC, following a complaint and consent decree filed in Tulsa, Okla., last week against Fabricut, Inc.