On May 16, 2013, the U.S. Equal Employment Opportunity Commission filed its first class action lawsuit under the Genetic Information Nondiscrimination Act (GINA) against a nursing and rehabilitation center. The EEOC filed this class action just 11 days after it filed—and then immediately settled—its very first lawsuit alleging genetic bias. The EEOC’s filing of these two lawsuits in such close succession signals to employers its commitment to pursuing genetic discrimination claims.
In Equal Employment Opportunity Commission v. Founders Pavilion, the EEOC alleges that Founders Pavilion, Inc., a 120-bed skilled nursing and rehabilitation facility in Corning, New York, violated GINA by conducting a post-offer, pre-employment medical exam that included questions about the applicant’s family medical history and requiring employees to repeat this exam annually. In addition to GINA violations, the EEOC further alleges that Founders Pavilion violated Title VII of the Civil Rights Act and the Americans with Disabilities Act by refusing to hire and/or firing women because they were pregnant or had perceived disabilities. This litigation is pending in the United States District Court for the Western District of New York.
GINA went into effect on November 21, 2009 and makes it illegal for employers to request, require or purchase genetic information relating to an applicant for employment and to discriminate against applicants or employees because of genetic information. GINA’s prohibition on employers requesting genetic information covers not only the genetic information of applicants and employees, but also the genetic information of the family members of applicants and employees.
Equal Employment Opportunity Commission v. Founders Pavilion serves as an excellent reminder to employers that their policies and procedures must be compliant with GINA guidelines. Employers cannot request information regarding medical history at any time during the hiring process or employment, including through a third-party provider or examiner.