Although the EEOC rarely files suit seeking to redress violations of the Genetic Information Nondiscrimination Act of 2008 (“GINA”), on October 31, 2016, the United States District Court for the Eastern District of New York entered a three year consent decree against a New York home health agency in a class action brought by the EEOC which alleged violations of Title II of the Act. In Equal Employment Opportunity Commission v. BNV Home Care Agency, Inc., Case No. 14-cv-5441 (E.D.N.Y. Oct. 31, 2016), the EEOC alleged that the defendant, a home health agency, maintained a policy of unlawfully requesting genetic information from a class of applicants and employees. The EEOC alleged that the home health agency violated GINA when it asked applicants and employees to provide family medical history on the company’s “Employee Health Assessment” form. Specifically, applicants and employees, including home health aides, were asked to identify whether they or any family members had experienced any of a list of 29 medical conditions including diabetes, kidney disease, heart disease, high blood pressure, arthritis, mental illness, epilepsy or cancer. The company claimed that it requested the information from applicants and employees for the protection of its patients.
Although the Court did not rule on the merits of the case, it approved a three year consent decree entered into between the EEOC and the home health agency which mandated injunctive relief, training, posting and distribution of notice regarding resolution of the lawsuit, ongoing reporting and compliance obligations, and the payment of $125,000 to a class of affected applicants and employees.
This case serves as an important reminder to employers that even though the EEOC has rarely filed suit to enforce GINA (it has only filed six lawsuits under the Act since it became effective in 2009), it nevertheless has authority to investigate and enforce the provisions of the Act. In fact, according to EEOC statistics, from 2010 to 2015, more than 1,600 charges were filed with the agency alleging violations of the Act, and the EEOC has collected more than $5.5 million in monetary benefits as a result of such charges, which lend themselves well to possible class claims. GINA prohibits employers from using genetic information in making employment decisions, including hiring, firing, advancement, compensation, and other terms, conditions and privileges of employment. GINA also generally prohibits employers from requesting or requiring applicants or employees to provide genetic information except in very narrow circumstances.
Employers should take care to review their policies and practices to ensure that they are not improperly requesting genetic information — broadly defined to include information about family medical history — at any point during the application process or subsequent employment, including during fitness-for-duty examinations. If they do so, they may find themselves on the receiving end of unwelcome scrutiny by the EEOC.