The Equal Employment Opportunity Commission (EEOC) has ramped up its vigilance over instances of genetic discrimination in the workplace. Last year, it filed its first class action lawsuit alleging violations of the Genetic Information Nondiscrimination Act (GINA), and this case has now settled. In the complaint, the EEOC charged that Founders Pavilion, a New York rehabilitation center, requested that job applicants provide a family medical history as part of its post-offer, pre-employment medical exams of applicants, in violation of GINA (ADA and Title VII claims were also advanced). Title II of GINA, passed by Congress in 2008 and enforced by the EEOC, prevents employers from requesting genetic information or making employment decisions based on genetic information:
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. The EEOC enforces Title II of GINA (dealing with genetic discrimination in employment). The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.
The definition of genetic information in the statute is broad:
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.
Details of the settlement:
As part of a five-year consent decree resolving the suit, Founders Pavilion will provide a fund of $110,400 for distribution to the 138 individuals who were asked for their genetic information. Founders Pavilion will also pay $259,600 to the five individuals who the EEOC alleged were fired or denied hire in violation of the ADA or Title VII.
The EEOC enforcement portfolio for GINA is relatively new. The EEOC filed and then settled its first GINA case last year, and it subsequently filed another case in September. 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, and this is likely to continue. An emerging issue in the post-Affordable Care Act climate is a possible intersection of GINA data collection prohibitions with employer-provided wellness programs, which might involve making a health risk assessment (HRA) that impermissibly strays into the acquisition of genetic information in a manner that GINA prohibits. GINA’s relative invisibility in the civil rights toolkit of the EEOC will likely diminish over time.