August 15, 2015

EEOC Files GINA Lawsuit Against Employer for Unlawful Collection of Genetic Information

The Equal Employment Opportunity Commission (EEOC) has filed a federal complaint against a Virginia employer, Bedford Weaving, Inc., alleging that the company illegally sought medical information from a job applicant, and used that information to deny her a job. The lawsuit relies on the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), both of which are enforced by the EEOC. The ADA, enacted in 1992, prohibits an employer from taking any adverse position against an applicant or an employee based on a real or perceived disability. GINA, enacted in 2008, prohibits inquiries regarding family or personal medical history; such inquiries might reveal genetic disorders or susceptibilities that an employer might use in hiring, retaining or promoting employees. Title II of GINA 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. 
More background from the EEOC
Bedford Weaving operates a weaving manufacturing facility in Bedford, Va.  According to the complaint, Bedford Weaving's employment application asked applicants questions about their family medical history, solicited disability-related information, and contained questions about applicants' personal medical history.

Pamela Hedrick applied for work at the facility in August 2013 and filled out an application at that time. Hedrick suffers from chronic obstructive pulmonary disease and asthma, which she disclosed on her application in response to Bedford Weaving's illegal medical questions.  EEOC's complaint stated that Bedford Weaving told Hedrick it had no vacant positions, while in fact it had at least two vacant positions for which Hedrick was qualified. EEOC charged that Bedford Weaving failed to hire Hedrick because of her disability, which Bedford Weaving became aware of because Hedrick disclosed disability-related information on her application. 
The questions asked on the employment application and the alleged failure to hire due to the information disclosed, violate the Americans with Disabilities Act which prohibits employers from making disability-related inquiries of an applicant before a job offer, and from refusing to hire an individual due to a real or perceived disability. The questions also violate the Genetic Information Nondiscrimination Act (GINA), the federal law that prohibits employers from requesting genetic information, including family medical history, or using that information in the hiring process.  
The EEOC seeks back pay, compensatory damages and punitive damages as well as injunctive relief.
In 2014, the EEOC settled a class action enforcement action against an employer that violated GINA by making prohibited pre-employment medical inquiries (see here). As illustrated by the new EEOC filing, while GINA is centrally concerned with prohibiting discriminatory practices in the workforce that are based on the genetic status of applicants or employees, it includes strong prohibitions against employer acquisition of such genetic information, whether directly (genetic testing) or indirectly (family history). An academic study published earlier this year found that the general public is largely unaware of GINA or the legal protections against genetic discrimination. That conclusion is noteworthy, as a major impetus for GINA's passage was to alleviate fears by employees that genetic test results sought in medical care might lead to adverse action by an employer. However, most employees in the U.S. are not aware of these legal protections; nonetheless, the use of genetic testing in medical care today continues to increase.

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