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Employment Questions Addressing Genetic Information Could Result in Discrimination under GINA

Originally posted by Colleen Sweeney on United Benefit Advisors’ blog

“Hey! You can’t ask me that!”

Chances are that you have completed a questionnaire asking about your family medical history. For example: Have you or anyone in your family had the following medical conditions: heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis, etc.? Did you know that if these questions are directly connected to your employment, that they are illegal under the Genetic Information Nondiscrimination Act (GINA)? GINA took effect in November 2009 and prohibits employers from discrimination against employees or applicants because of genetic information, including family medical history.

On May 7, 2013, the EEOC settled its first lawsuit against an employer alleging violation of GINA. In EEOC v. Fabricut, the EEOC alleged that the employer violated GINA by asking about an individual’s family medical history in a post-offer medical examination and then violated the American With Disabilities Act (ADA) by refusing to hire her because it regarded her as having carpal tunnel syndrome. It is important to note that the questionnaire came from a third party medical provider and not directly from the employer.

To settle the lawsuit, the employer agreed to pay $50,000 and plans to take various actions to prevent future discrimination, including posting and disseminating anti-discrimination policies and providing training for employees with hiring responsibilities. The EEOC has stated, “Although GINA has been law since 2009, many employers still do not understand that requesting family medical history, even through a contract medical examiner, violates this law.”

Because addressing genetic discrimination is one of the EEOC’s enforcement priorities, it is critical that employers ensure that their forms, processes and policies and those of any third party providers performing services on behalf of the employer are compliant with GINA.