Federal law protects employees against discrimination based on a wide and expanding range of factors. Congress enacted the Genetic Information Non-Discrimination Act (GINA), 42 U.S.C. § 2000ff et seq., in 2008 to protect employee privacy with regard to genetic information and to prohibit discrimination on the basis of such information. The Equal Employment Opportunity Commission (EEOC) recently announced that it had settled a lawsuit against an employer that allegedly violated GINA by requesting family medical history from employees and job applicants. EEOC v. BNV Home Care Agency, Inc., No. 1:14-cv-05441, complaint (E.D.N.Y., Sep. 17, 2014). In a consent decree filed in October 2016, the employer agreed to pay $125,000 in damages, along with other injunctive and equitable relief.
GINA defines “genetic information” broadly to include the results of an individual’s genetic tests and those of the individual’s family members, as well as “the manifestation of a disease or disorder” in members of that individual’s family. 42 U.S.C. § 2000ff(4)(A). “Family members” include first-degree relatives, including “parents, siblings, and children,” through fourth-degree relatives, including great-great-grandparents and -grandchildren. Id. at § 2000ff(3), 29 C.F.R. § 1635.3(a)(2). Genetic testing includes screening for various genetic abnormalities or genetic variants indicating a predisposition to certain diseases, such as “the BRCA1 or BRCA2 variant evidencing a predisposition to breast cancer.” 29 C.F.R. § 1635.2(f)(2)(i).
Employers may not discriminate in hiring, firing, compensation, or other features of employment on the basis of a person’s genetic information. 42 U.S.C. § 2000ff-1(a). For example, an employer violates GINA if they refuse to hire someone based on genetic tests showing a predisposition to cancer. Employers are also prohibited from “request[ing], requir[ing], or purchas[ing] genetic information” on an employee or an employee’s family member(s), with some exceptions. Id. at § 2000ff-1(b). The EEOC and aggrieved individuals may bring claims for alleged violations of GINA in the manner prescribed under Title VII of the Civil Rights Act of 1964. Id. at §§ 2000ff-6, 2000e-5(f).
According to the EEOC’s complaint in the BNV case, the defendant “engaged in an on-going unlawful employment policy or practice” by requiring individuals to submit genetic information. BNV, complaint at 3. The defendant allegedly required employees and job applicants to complete an “Employee Health Assessment” (EHA), which included a checklist of 29 health conditions, such as diabetes, heart disease, and cancer. Id. The form asked people to check “yes” or “no” to indicate whether they or a family member had experienced any of these conditions. Job applicants were allegedly required to complete the form after receiving a conditional employment offer, and employees had to submit an updated form on an annual basis.
The EEOC filed suit on behalf of a complainant and a class of similarly situated individuals, asserting a single count for a violation of GINA. The parties settled the lawsuit in October 2016. The defendant agreed to an injunction against further GINA violations or retaliation against employees for reporting alleged violations. It represented that it had destroyed all EHAs obtained since 2014, and it agreed to modify its EHA form to comply with GINA. It also agreed to pay $125,000 in damages to be distributed equally among current employees.
If you need to speak with a disability discrimination attorney about a matter in New Jersey or New York, contact the Resnick Law Group today online, at 973-781-1204, or at (646) 867-7997.
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