May 8, 2013

GINA Enforced: EEOC Settles Its First Genetic Discrimination Lawsuit

The Equal Employment Opportunity Commission (EEOC) has announced a settlement in what it describes as the first lawsuit it has filed alleging genetic discrimination in violation of the Genetic Information Nondiscrimination Act (GINA), enacted in 2008. GINA applies to two separate spheres, health insurance (Title I) and employment (Title II) (see here). From the EEOC
Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts employers and other entities covered by Title II (employment agencies, labor organizations and joint labor-management training and apprenticeship programs - referred to as "covered entities") from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information. 
In this case, the EEOC charged that Fabricut, Inc., an Oklahoma wholesale distributor of home furnishing items, violated GINA’s general prohibition on obtaining genetic information from an applicant or employee; it then denied employment based on the results. GINA defines genetic information broadly:
Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. Genetic information also includes an individual's request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual, and the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology. 
Here, an individual who was offered a position with Fabricut was required to take a pre-employment (post-offer) medical exam, during which her family medical history was compiled, in violation of GINA. Based on this history and testing performed by its contract medical examiner, the company told the newly hired employee that she needed to be evaluated for carpal tunnel syndrome (CTS), a type of neuropathy that can result in muscle weakness and a marked inability to perform repetitive tasks (and which can have a genetic component). The employee’s own doctor concluded she did not have CTS, but the company nonetheless rescinded her job offer. In the consent decree, Fabricut will pay $50,000, in addition to undertaking “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.” The lawsuit had also alleged a violation of the American with Disabilities Act (ADA) in that its failure to hire the employee was based on the fact that she was “regarded as” having a disability, in violation of the statute (the ADA also has guidelines on when medical exams can be required in the workplace in general). In 2001, the EEOC reached a settlement with Burlington Northern Santa Fe Railway over the misuse of genetic information under the ADA, where the company attempted to deny disability payments by surreptitious genetic testing of its employees for susceptibility to CTS. At the time, GINA did not exist, and the ADA was used to capture what resembled genetic discrimination in the absence of a more directed statute. Now, GINA exists, and the EEOC can charge genetic discrimination directly. The statistics on genetic discrimination complaints filed with the EEOC for 2012 reveal that of the 280 GINA charges investigated by the EEOC, approximately 59% found no reasonable cause, while approximately 13% did find reasonable cause. The trendline shows an increase in GINA complaints every year. Although many employers are aware of GINA and the general prohibition against genetic discrimination, the Fabricut case will further emphasize how employers must steer clear of collecting genetic information in the course of otherwise legitimate employment-related medical exams, and how GINA builds on the ADA protections for employees or applicants against extraneous medical inquiries by employers.

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