Employers Are Liable for Questions Asked by Contract Medial Providers In Violation of GINA

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Published on Friday, 17 May 2013 15:30

          As a recent case demonstrates, employers must exercise care to avoid a violation of the Genetic Information Nondiscrimination Act (GINA) by permitting improper questions, such as questions about an employee’s family history, by a contract medical provider during preemployment physicals. The case involves Fabricut, Inc., one of the world's largest distributors of decorative fabrics. The company has agreed to pay $50,000 and furnish other relief to settle a disability and genetic information discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). This is the first lawsuit ever filed by the EEOC alleging genetic discrimination. In its lawsuit, the EEOC charged that Tulsa-based Fabricut violated the Americans with Disabilities Act (ADA) when it refused to hire a woman for the position of memo clerk because it regarded her as having carpal tunnel syndrome, and violated GINA when it asked for her family medical history in its post-offer medical examination. David Lopez, General Counsel of the EEOC commented that, "Employers need to be aware that GINA prohibits requesting family medical history…When illegal questions are required as part of the hiring process, the EEOC will be vigilant to ensure that no one be denied a job on a prohibited basis."

          According to the EEOC's suit, Rhonda Jones, worked for Fabricut in a temporary position as a memo clerk for 90 days. When her temporary assignment was coming to an end, she applied for a permanent job in that position.
Fabricut made Jones an offer of permanent employment on August 9, 2011, and sent her to its contract medical examiner, Knox Laboratory, for a pre-employment drug test and physical. When Jones reported for her physical,
she was required to fill out a questionnaire and disclose the existence of numerous separately listed disorders in her family medical history. The questionnaire asked about the existence of heart disease, hypertension, cancer,
tuberculosis, diabetes, arthritis and "mental disorders" in her family. Jones was then subjected to medical testing, from which the examiner concluded that further evaluation was needed to determine whether Jones suffered from carpal tunnel syndrome (CTS).

          Fabricut told Jones she needed to be evaluated for CTS by her personal physician and to provide the company with the results. Jones's physician gave her a battery of tests and concluded that she did not have CTS. Although Jones provided this information to Fabricut, the company rescinded its job offer because Knox Labs indicated that she did have CTS. Jones made a written request for reconsideration, emphasizing that she does not have CTS, but Fabricut allegedly ignored her request. Such alleged conduct violates GINA, which makes it illegal to discriminate against employees or applicants because of genetic information, which includes family medical history; and also restricts employers from requesting, requiring or purchasing such information. GINA was signed into law in 2008, and took effect the following year. One of the six national priorities identified by the EEOC's Strategic Enforcement Plan is for the agency to address emerging and developing issues in equal employment law, which includes genetic discrimination. Read More.

Employer to Pay $650,000 to Settle Sexual Harassment Lawsuit

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Published on Friday, 17 May 2013 14:59

          National Food Corporation, a major supplier of eggs to the Pacific Northwestern and Midwestern United States and East Asia with headquarters in Everett, Washington, has agreed to pay $650,000 to five workers and provide other relief to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC's suit charged that a supervisor at National Food's egg farm repeatedly demanded sexual favors from a female laborer, who worked alone in a henhouse, in order to keep her job. The supervisor allegedly would physically grab the barn worker and demand sex from her on a weekly basis, from 2003 to 2010. The  EEOC also alleged that when the employee’s co-workers raised complaints about sexual harassment to company management, they were fired or forced out of their jobs. David Lopez, general counsel of the EEOC, commented that "This lawsuit is another in an unfortunate pattern of employers taking advantage of female agricultural workers who often work in isolation and are unaware of their rights…It is one of the EEOC's national priorities to combat discrimination against vulnerable workers, and we hope that this settlement sends a message to other employers that they need to be vigilant to prevent sexual harassment and other abuse." Read More.

EEOC Issues Revised Publications on Specific Disabilities

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Published on Friday, 17 May 2013 14:45

          The U.S. Equal Employment Opportunity Commission (EEOC) has issued four revised documents on protection against disability discrimination, pursuant to the goal of the agency's Strategic Plan to provide up-to-date guidance on the requirements of antidiscrimination laws. The documents address how the Americans with Disabilities Act (ADA) applies to applicants and employees with cancer, diabetes, epilepsy, and intellectual disabilities. These documents are available on the agency's website at "Disability Discrimination, The Question and Answer Series," http://www.eeoc.gov/laws/types/disability.cfm. According to EEOC Chair Jacqueline A. Berrien, "Nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability…Many of them are looking for jobs or are already in the workplace. While there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions."

          In plain language, the revised documents reflect the changes to the definition of disability made by the ADA Amendments Act (ADAAA) that make it easier to conclude that individuals with a wide range of impairments, including cancer, diabetes, epilepsy, and intellectual disabilities, are protected by the ADA. Each of the documents also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment. Read More.

EEOC Files Genetic Information Discrimination Lawsuit Against Rehab Center

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Published on Friday, 17 May 2013 14:35

          According to a lawsuit filed by the Equal Employment Opportunity Commission (EEOC) the Founders Pavilion, Inc., a Corning, N.Y., nursing and rehabilitation center, allegedly violated federal law by asking for genetic information during the hiring process. The EEOC also alleged that Founders violated the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act. The EEOC has charged that Founders 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. Such alleged conduct is in violation of the Genetic Information Nondiscrimination Act (GINA), passed by Congress in 2008 and enforced by the EEOC. GINA prohibits employers from demanding genetic information, including family medical history, and using that information in the hiring process. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. The Founders suit is the second ever GINA lawsuit filed by the EEOC. Read More.