This month, the Equal Employment Opportunity Commission (EEOC) settled itsfirst ever lawsuit involving the Genetic Information Nondiscrimination Act of 2008 (GINA).

GINA prohibits the use of genetic information in making employment decisions in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits or any other term or condition of employment.

What was the violation? According to the allegations, a large fabric distributer violated GINA when it asked an applicant for her family medical history in a post-offer, pre-employment physical.

As part of the physical, the applicant was required to fill out a questionnaire which asked about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and “mental disorders” in her family.

“Employers need to be aware that GINA prohibits requesting family medical history,” said David Lopez, general counsel of the EEOC. “When illegal questions are required as part of the hiring process, the EEOC will be vigilant to ensure that no one be denied a job on a prohibited basis.”

On a related note, the EEOC also filed its first GINA class-action lawsuit. The EEOC alleges that a nursing and rehabilitation center conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired. As part of this exam, the employer requested family medical history, a form of prohibited genetic information.

The EEOC’s Strategic Enforcement Plan (SEP) identifies addressing emerging issues, such as GINA violations, as one of the EEOC’s six national priorities.

Author: Gail Cecchettini Whaley

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