While the Genetic Information Nondiscrimination Act of 2008 (GINA) has proven to be the least-litigated of the federal anti-discrimination laws, a recent settlement obtained by the Equal Employment Opportunity Commission (EEOC) serves as reminder of the Act’s prohibitions.  In EEOC vs. Founders Pavilion Inc. (W.D.N.Y), the EEOC alleged that an employer violated GINA by asking for family medical history as part of pre-employment, return-to-work and annual medical exams of its employees.

According to EEOC officials, this lawsuit marked the third GINA lawsuit filed by the agency and the first lawsuit alleging that an employer engaged in systemic discrimination.  The consent decree entered by the parties provided that the employer would pay a total class award of $110,400 to compensate 138 company employees who were hired during a period where the company used a form that included a “Family History” section.

Previously, the EEOC accused Fabricut Inc., one of the world's largest distributors of decorative fabrics, of violating GINA when it asked a job applicant for her family medical history in a post-job-offer medical examination.  According to the EEOC’s suit, the employer violated both the Americans with Disabilities Act (ADA) and GINA.  As part of the settlement, the employer agreed to a $50,000 payment to the applicant and several preventative measures which included posting an anti-discrimination notice, distributing anti-discrimination policies to employees and providing anti-discrimination training to employees with hiring responsibilities.

While cases alleging GINA violations are few, these settlements serve not only as a reminder of GINA’s oft-forgotten existence, but also as a reminder for employers to review applications, leave forms and related documents to ensure there are no impermissible requests for medical history.  When in doubt, do not hesitate to seek the advice of employment counsel.