Question: Our company requires post-offer, pre-employment medical examinations that include a family medical history. Is this considered “genetic information” under the Genetic Information Nondiscrimination Act?   If so, am I at risk for a lawsuit even if I don’t use the information to make any decisions affecting an employee’s job?


Answer: Congress passed the federal Genetic Information Nondiscrimination Act (GINA) in 2008 to protect Americans from discrimination based on their genetic information in the employment and health insurance context. GINA prohibits group health plans and health insurers from denying coverage to a healthy individual or charging that person higher premiums based solely on a genetic predisposition to developing a disease in the future.   GINA also bars employers from using individuals’ genetic information when making employment decisions. Under GINA, the term genetic information is defined broadly to include information about an individual’s genetic tests, the genetic tests of a family member, and an individual’s family medical history. In addition to prohibiting discrimination based on genetic information, GINA restricts the circumstances under which an employer may request, require or purchase genetic information. Therefore, asking potential employees about their family medical history during a post-offer, pre-employment medical exam can violate GINA, even if that information is never used to make a decision affecting the employee’s job.
Since 2008, lawsuits based on GINA violations have been rare, making up less than 1% of the total discrimination charges processed by the U.S. Equal Employment Opportunity Commission (EEOC). However, in the last year the EEOC has decided to make GINA compliance a priority. Addressing emerging and developing issues in equal employment law, including genetic discrimination, is one of six national priorities identified by the EEOC’s strategic enforcement plan.
For example, on May 7, 2013, the EEOC filed a lawsuit against Fabricut, Inc. alleging violations of the Americans with Disabilities Act (ADA) and GINA. According to the EEOC’s complaint, an employee was offered a permanent position contingent upon a pre-employment drug test and physical, which required the employee to disclose any heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and “mental disorders” in her family. Thereafter, Fabricut rescinded its job offer to the employee because the medical exam indicated that she had carpal tunnel syndrome. The employee then filed a complaint with the EEOC, and the EEOC filed a lawsuit against the employer on the employee’s behalf. A few days after the EEOC filed its lawsuit, the parties agreed to settle the matter for $50,000.
The EEOC filed a GINA lawsuit against Founders Pavilion, Inc. alleging GINA discrimination just before announcing the Fabricut settlement. In the Founders Pavilion case, the EEOC accused the employer of violating GINA by requesting family medical history as part of a post-offer, pre-employment medical exam. The lawsuit also alleged that Founders Pavilion fired two employees because they were perceived to be disabled in violation of the ADA, and refused to hire or fired three women because they were pregnant, in violation of Title VII of the Civil Rights Act of 1964. Ultimately, the parties settled the case.
In light of GINA requirements and recent lawsuits, employers should review their application materials and hiring procedures to ensure they are not requesting genetic information or family medical history. Employers should also be cautious not to base hiring, promotion, or other employment decisions on genetic information.