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Enforcement of Alleged Genetic Discrimination is Real – Just Ask the Company Sued by EEOC!

Under GINA, Genetic Discrimination is Against the Law.(July 17, 2013): Literally no one, regardless of their political leanings, believes that individuals should be discriminated against – most especially because of their genetic makeup. To that end, to discourage genetic discrimination, Congress passed the Genetic Information Nondiscrimination Act” (GINA) in 2008 and it took effect in 2009.  Notably, GINA makes generic discrimination illegal.  In other words, you cannot discriminate against employees or applicants because of their genetic information.  

What exactly is genetic information?  The Equal Employment Opportunity Commission (EEOC) describes it as:

“Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. Genetic information also includes an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual, and the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.” (emphasis added).

I.  Recent Genetic Discrimination Cases Filed by EEOC Under GINA:

While GINA was first passed in 2008, until recently there has been very little enforcement activity pursued by EEOC.

Case #1:  In early May, 2013, EEOC filed its first case under GINA for genetic discrimination in the case of Equal Employment Opportunity Commission v. Fabricut Inc.  According to the EEOC:

  • Fabricut had employed an individual in a temporary position as a memo clerk for 90 days.
  • When the temporary assignment was winding down, the individual applies for a permanent position.
  • She was subsequently issued an employment offer by Fabricut.
  • She then went to see the company’s contract medical examiner for a pre-employment drug test and physical examination.
  • When she reported for the test,  she completed a written questionnaire and disclosed numerous disorders in her family medical history.
  • She was then subjected to medical testing, the result of which was that the medical examiner recommended that she be evaluated to determine whether she suffered from carpal tunnel syndrome (CTS).  She was told to go to her personal physician for CTS testing.
  • She went to her personal physician who found that she did not have CTS.
  • Although she provided this information to the company, the employment office was rescinded because the medical examiner indicated that she did, in fact, have CTS.
  • She submitted a written request for reconsideration to the employer but it was denied.

In response, the individual filed a complaint against the company and the EEOC concluded that the company’s conduct violated both the Americans with Disabilities Act (ADA).  EEOC reported that the ADA violation allegedly occurred when the company refused to hire the individual for the position of memo clerk because it regarded her as having carpal tunnel syndrome.  The EEOC also alleged that the company violated GINA when it asked for her family medical history in its post-offer medical examination.  Notably, the case was settled shortly after the filing of this suit.

Case #2:  In mid-May, EEOC filed its second case under GINA for genetic discrimination, this time against a health care provider.   in the case of Equal Employment Commission v. Founders Pavilion, Inc., it was alleged that a New York State nursing home and rehabilitation center conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired. As part of this exam, Founders requested family medical history, a form of prohibited genetic information.”

The EEOC has contended that such requests for family medical history violate GINA’s prohibition against employers requesting or requiring disclosure of employees’ genetic information. Notably, the EEOC has also identified a number of alleged violations of the ADA that the nursing home has supposedly committed.  The case is currently pending in Federal District Court for the Western District of New York.

II.  Genetic Discrimination Lessons Learned:

All health care providers, regardless of size, should have an effective Compliance Plan in place.  If your organization has not already done so, we recommend that you work with a qualified health lawyer to develop, implement and adhere to the legal and regulatory obligations related to the medical care and treatment services that you provide.

Importantly, a provider is not merely required to comply with the various coding, billing and other regulatory requirements related to their specialty area.  Health care providers must also fully adhere to their obligations under mandates issued by the Occupational Safety and Health Administration (OSHA), under the privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Title VII of the Civil Rights Act, the ADA and, of course, GINA. As these two recent enforcement cases reflect, the EEOC takes genetic discrimination quite seriously.  All health care providers should carefully examine their employment screening, hiring and staffing processes to help ensure that they have met their obligations under GINA and other newly passed employment statutes.

Healthcare LawyerRobert W. Liles, J.D., M.B.A., M.S., serves as Managing Partner at the health law firm of Liles Parker.  Should you have any questions regarding this or another health law issue, please call us.  For a free consultation, call: 1 (800) 475-1906.

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