As a relatively new law, the Genetic Information Nondiscrimination Act (GINA) is often forgotten amidst the myriad of anti-discrimination statutes with which most employers must comply. A recent settlement with the United States Equal Employment Opportunity Commission (EEOC), however, serves as both a cautionary tale and a reminder that employers should review and revise application materials and hiring procedures to ensure compliance with GINA. 

EEOC v. Founders Pavilion, Inc., filed by the EEOC in May 2013, was the first GINA lawsuit brought by the EEOC under a theory of systemic discrimination. In the lawsuit, the EEOC alleged that Founders Pavilion, a New York nursing and rehabilitation facility, violated GINA by requesting family medical history as part of the post-offer, pre-employment medical exam required for job applicants. The lawsuit further alleged that Founders Pavilion committed violations of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.

In January of 2014, the parties reached a settlement agreement under which Founders Pavilion will pay $370,000. Of that amount, $110,400 will be used to compensate 138 individuals who were asked for their genetic information. The remaining $259,600 will be paid to five individuals who, according to the EEOC, were terminated or denied hire by Founders Pavilion in violation of the ADA and/or Title VII. Founders Pavilion also agreed to provide anti-discrimination training to its employees and revise its anti-discrimination policies to reference genetic information discrimination. 

Generally speaking, GINA prohibits the use of genetic information in making employment decisions, restricts the circumstances in which employers may request, require, or purchase genetic information, and prohibits the disclosure of genetic information except in certain limited circumstances. The term “genetic information” is very broad and includes, among other things, information about an individual’s genetic tests, information about the genetic tests of a family member, and an individual’s family medical history. Much like other anti-discrimination statutes, GINA contains anti-retaliation language prohibiting employers from retaliating against employees who oppose employment practices made unlawful by GINA or who participate in investigations, proceedings, or hearings under GINA.

Although discrimination charges based upon violation of GINA are rare, making up less than 1% of the total discrimination charges processed by the EEOC in recent years, the Founders Pavilion case demonstrates the EEOC’s commitment to enforcing GINA and the importance of compliance with its provisions. Indeed, in the EEOC’s press release regarding the settlement, EEOC New York District Director Kevin Berry stated that “Employers should take heed of this settlement because there are real consequences to asking applicants or employee[s] for their family medical history,” and “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.”

Employers should review application materials and hiring procedures to ensure compliance with GINA, including the training of personnel involved in hiring and, if necessary, the removal of potentially impermissible requests for family medical history or other genetic information.  Taking these precautionary measures can help avoid the inconvenience and expense of EEOC investigations and enforcement actions.