New Genetic Discrimination Cases Highlight Growing Issue

Author: David B. Weisenfeld, XpertHR Legal Editor

July 2, 2013

The Equal Employment Opportunity Commission (EEOC) recently reached a $50,000 settlement in its first lawsuit ever accusing an employer of violating the Genetic Information Nondiscrimination Act (GINA). The EEOC followed that up by filing its first class action under GINA.

North Carolina employment attorney and noted blogger Robin Shea, who practices with Constangy, Brooks & Smith, thinks the EEOC's activity in this area is a sure sign of things to come. In a new XpertHR Presents Podcast, Shea shares her insights about genetic bias in the workplace.

Genetic discrimination claims can arise when an employer uses a job applicant's or employee's genetic history against them in making employment decisions. GINA restricts the acquisition and disclosure of this information.

Warnings for Employers

"We've got a toxic combination of an EEOC that is very aggressive and looking for ways to take expansive positions on the existing laws, and on the other hand... we have an employer community that has not always seemed interested in GINA," said Shea. "I think that's primarily because of a misunderstanding that GINA only applies to genotyping of prospective employees, and [the law] is really much broader than that." As a result, she suggests that more litigation is likely.

Shea says the real problem for employers is when their physician or even the employer itself in casual conversation asks a question about somebody's family medical history. Such questions, she notes, are prohibited under GINA in connection with an employment-related exam.

According to Shea, another big risk employers face is having GINA claims "piggybacked" onto lawsuits involving the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and workers' compensation retaliation claims.

However, the North Carolina attorney points out that employers are not without recourse because GINA includes "safe harbor" language that can protect them. She explains that the statute has a disclaimer saying GINA prohibits asking for any genetic information, including family history information. "If the employer provides that language to the health care provider and the provider then goes ahead and asks about medical history, then you as the employer are protected from any GINA liability," says Shea. Developing a GINA policy is a good practice as well.

Another Notable Development

The podcast also features a discussion of a few other notable recent developments affecting HR. Chief among them is a recent Fifth Circuit ruling in EEOC v. Houston Funding II, that firing a woman for lactating (i.e., expressing breast milk) is unlawful sex discrimination under Title VII of the Civil Rights Act. 2013 U.S. App. LEXIS 10933.

Shea calls the ruling an important reminder that employers cannot discriminate in this area and that they need to provide unpaid breaks to women for lactating in a private space other than a bathroom.