EEOC Settles First Ever Systemic GINA Suit

Author: Beth P. Zoller, XpertHR Legal Editor

January 13, 2014

For the first time, the Equal Employment Opportunity Commission (EEOC) has settled a systemic suit against an employer based on allegations that it violated the Genetic Information Nondiscrimination Act (GINA). EEOC v. Founders Pavilion, Inc., 13-CV-01438. GINA prohibits employers from requesting employees and applicants to provide individual or family medical history and genetic information and from basing employment decisions on such information.

Specifically, the EEOC alleged that Founders, a nursing and rehabilitation center, asked job applicants to provide their family medical history during post-offer preemployment medical exams and employees to provide this information as part of return-to-work and annual medical exams. The EEOC also claimed that Founders violated the Americans with Disabilities Act (ADA) by terminating two employees it perceived as disabled. Finally, the EEOC alleged that the employer violated Title VII by either refusing to either hire or firing three pregnant women.

Under the settlement, Founders must set up a fond totalling more than $110K to 138 individuals whose GINA rights were violated, and more than $250K to the five individuals whose ADA or Title VII rights were violated. In addition, Pavilion Operations, LLC, Founders' successor, agreed to revise its discrimination policies to include specific references to discrimination based on genetic information, disability and pregnancy. Pavilion also agreed to provide a comprehensive discrimination complaint and investigation procedure and antidiscrimination training for its employees.

Founders is the third GINA lawsuit brought by the EEOC, and follows the Fabricut, Inc. case, which was settled for $50K, but the first ever GINA systemic lawsuit. The EEOC has stated that one of its key Strategic Enforcement Priorities is to address emerging and developing issues in equal employment law, including genetic information discrimination.

Accordingly, because GINA is a new and growing area of the law, employers should consider providing training on GINA and other antidiscrimination laws to all employees and supervisors. Further, employers should not request, or base employment decisions on, an individual's medical history or genetic information during hiring, post-offer medical exams, return-to-work situations or as part of an employee wellness program.