Compliance with the Genetic Information Nondiscrimination Act of 2008 (GINA) has also recently been in the spotlight. The EEOC filed a suit against Fabricut (EEOC v. Fabricut Inc., No. 13-CV-0248-CVE-PJC, N.D. Okla. 2013), specifically challenging a violation of the ADA for refusing to hire an individual with a deemed medical condition, as well as violation of GINA for inquiring about her family medical history in a post-offer medical exam (see EEOC Press Release).
As background, GINA includes two titles: Title I governs health plans and insurers and is enforced by the Department of Labor (DOL); Title II governs employment practices and is enforced by the Equal Employment Opportunity Commission (EEOC). Title II applies to employers employing 15 or more employees. Specifically, an employer cannot refuse to hire, discharge, or otherwise discriminate against any employee, including an applicant, due to that individual’s genetic information, in any terms, conditions, or privileges of employment, including compensation. Employers cannot request information about an individual’s genetic make-up, nor can the employer purchase such information. In addition, the law prohibits collection of genetic information, including family medical history, with six very narrow exceptions.
In this Fabricut lawsuit, compliance with the employment provisions of Title II were challenged. In this case, Rhonda Jones had worked for Fabricut as a temporary clerk. She was then being considered for full-time employment. She was asked to go through a pre-employment physical during which family medical history was impermissibly collected. Employment was denied, arguably based on Ms. Jones’ family history of carpal tunnel syndrome.
As a result of the lawsuit, Fabricut is ordered to pay $50,000 to Ms. Jones, and required to fulfill specific actions to prevent future discrimination, including EEOC posting of nondiscrimination laws, updating their policies, and provide discrimination training to their workforce responsible for making hiring decisions.
This case serves as a reminder of the importance to comply with GINA, both with regard to employment matters, as well as health plan compliance.
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