On May 7, 2013, the EEOC announced that it settled its first lawsuit against an employer alleging a violation of the Genetic Information Nondiscrimination Act (GINA). Fabricut, Inc., a large distributor of decorative fabric, will pay $50,000 and furnish other relief to settle the suit.

The EEOC alleged that Fabricut violated GINA when it asked a woman for her family medical history in its post-offer medical examination and violated the Americans with Disabilities Act (ADA) when it refused to hire her as a memo clerk because it regarded her as having, or being predisposed to develop, carpal tunnel syndrome. The EEOC claimed that after the woman was offered a position, Fabricut sent her to a contract medical facility to complete a post-offer medical examination and drug test. When she appeared for the medical examination, she was required to complete a questionnaire that asked her to disclose the existence of various conditions in her family medical history, such as heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and "mental disorders." Some medical literature correlates certain conditions to the development of carpal tunnel syndrome.

GINA makes it illegal for employers to request, require or purchase genetic information relating to an applicant for employment, which includes family medical history, and to discriminate against employees or applicants because of genetic information. EEOC Regional Attorney Barbara Seely stated, "Although GINA has been law since 2009, many employers still do not understand that requesting family medical history, even though a contract medical examiner, violates this law." Addressing emerging and developing issues, such as genetic discrimination, is one of the six national priorities identified in the EEOC's Strategic Enforcement Plan for Fiscal Years 2013-2016.

This settlement serves as a good reminder to employers to not only ensure that their forms, processes and policies have been updated to comply with GINA, but to also verify that any third party providers performing services for the employer are complying as well.

Employers should consider having legal counsel review third party providers' procedures and forms that will apply to the employer's applicants or employees, because a violation by a third party provider can be imputed to the employer as its agent. Regular training of supervisors, human resources personnel and individual employees involved in the hiring process on discrimination issues, including GINA and ADA compliance, as well as periodic review of anti-discrimination and medical and leave policies and procedures, are also the cornerstones of compliance. While this settlement stemmed from the claim of an individual applicant, alleged discriminatory policies and standard operating procedures present the risk of class action litigation, which is more costly to defend and settle.