GINA offers EEOC 'another arrow in the quiver' to protect employees against discrimination, attorney says

By Taryn Phaneuf | Apr 19, 2016

PITTSBURGH — Issues of employers violating federal law by requesting genetic information from their employees don’t come up often, but the U.S. Equal Employment Opportunity Commission has increased its efforts to enforce a relatively new law, a New York attorney says.

In January, the EEOC announced that it reached a settlement with Joy Mining Machinery in a federal genetic information discrimination lawsuit filed in Pittsburgh federal court. The lawsuit claimed that the company required prospective employees to submit to a post-offer medical exam in which they were asked about their family medical history.

The medical forms asked whether the applicants had a family medical history for "TB, Cancer, Diabetes, Epilepsy, [and] Heart Disease,” according to an EEOC news release.

Such requests violate the Genetic Information Nondiscrimination Act, the EEOC said. GINA, which took effect in 2009, prohibits an employer from discriminatory actions based on an employee’s genetic information, including family medical history.

The law also bars employers from requesting, requiring or purchasing genetic information about applicants or employees. Since 2010, the EEOC has received between 200 and 300 charges of GINA violations each year, making up less than one percent of total discrimination charges, said Christopher Gegwich of Nixon Peabody in New York.

“That being said, we have seen the EEOC increase its enforcement efforts against employers with employment practices which the EEOC contends violate GINA,” said Gegwich, who practices labor and employment law.

“Overall, between EEOC enforcement efforts and individual employee lawsuits, we do believe it is likely that GINA will become an increasing area of concern for employers who are not in compliance with the statute.”

In the settlement, Joy Mining Machinery agreed to provide relief, stop requesting the information in question and not retaliate against employees who brought charges to the EEOC. The manufacturer of surface and underground mining equipment is based in Warrendale. Its parent company, Joy Global, did not return requests for comment.

The company settled the suit without submitting any defense against the charges, so it’s not clear why it collected the genetic information from applicants. But Gegwich said the EEOC has made it clear that employers can’t use the information to make hiring decisions because it has no bearing on a person’s ability to work.

“In light of that strong proclamation from the EEOC, I am not aware of a legitimate purpose for an employer to request personal family medical history or genetic information from an applicant or current employee,” he said.

Gegwich said GINA joins other federal laws that protect people from discrimination “based on characteristics that are generally beyond their control.”

“The protection against discrimination by employers based on an individual’s genetic information is another arrow in the quiver of the civil rights statutes,” he said.

“The purpose of GINA, as well as Title VII, the Americans with Disabilities Act and the Age Discrimination in Employment Act, is to ensure that, in the professional realm, individuals should be free from fear of discrimination and will be evaluated solely on their skills and ability to do the job and nothing more.”

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