GINA, the Genetic Information Nondiscrimination Act was passed by Congress in 2008.  It prevents employers from requesting genetic information or making employment decisions based on genetic information.  GINA is enforced by the Equal Employment Opportunity Commission (EEOC).  Founders Pavilion, Inc. was a nursing and rehabilitation center in Corning N.Y.  TheEEOC alleged that Founders requested family medical history as part of its post-offer, pre-employment medical exams of applicants.  The EEOC also alleged that Founders fired two employees because they were perceived to be disabled.  Finally, the EEOC alleged that Founders refused to hire or fired 3 women because they were pregnant.  In 2013, the EEOC filed a lawsuit against Founders after the pre-litigation conciliation process failed.  Pursuant to a Consent Decree entered into between the parties, Founders agreed to pay $370,000 to settle the lawsuit, of which $259,600 will go to the five individuals, and $110,400 will go to 138 individuals who were asked for their genetic information.  Although the nursing facility was sold by Founders after the lawsuit was filed, Founders agreed to post notices and notify employees of the lawsuit and consent decree if they were to go back into business.  The new owner, Pavilion Operations, agreed as a non-party signatory to the consent decree, and will revise their antidiscrimination policies and will include specific references to GINA, the Americans With Disabilities Act (ADA), and pregnancy discrimination.

David Lopez, EEOC General Counsel, was quoted as saying:  “This is our third lawsuit since the enactment of the GINA law and the first one that is systemic….Employers need to be aware that GINA prohibits requesting family medical history.  When illegal questions are required as part of the hiring process, the EEOC will be vigilant in ensuring that no one is denied employment opportunities on a prohibited basis.”

EEOC New York District Director Kevin Berry was quoted as saying:  “Employers should take heed of this settlement because there are real consequences to asking applicants or employee for their family medical history…The EEOC will pursue these cases to the fullest extent of the law to ensure that such genetic inquiries are never made of applicants or employees.”

It should be emphasized that one of the six national priorities identified by the EEOC’ s Strategic Enforcement Plan includes addressing emerging and developing issues in equal employment law, including genetic discrimination.

Practice pointer.  Employers need to be aware of the emphasis being placed on GINA and other emerging and developing issues in equal employment law.  In Alabama, the EEOC will aggressively investigate and pursue these claims as part of the Strategic Enforcement Plan.  Even if an employer sells its business, it may still be subject to monetary and equitable remedies if sued by the EEOC.