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eLABORate: EEOC Settles First GINA Case Based on Employer Medical Exam Questions About Medical Family History

January 14, 2014

EEOC bagged its first consent decree under the Genetic Information Nondiscrimination Act of 2008. In EEOC v. Founders Pavilion Inc., No. 13-cv-6250, (W.D.N.Y. Jan. 9, 2014), EEOC alleged that the nursing home/rehabilitation center employer violated GINA by seeking family medical history data in post-offer, pre-employment exams. GINA treats family medical history as "genetic information," making it unlawful—absent an exception—for an employer to request such information. Far from being an EEOC overreach, the prohibition on requesting family medical history is baked into the text of the statute. Employers who are in the practice of having medical exams conducted should take note, because it may take a lot of counseling to get a practice that is as routine as asking for family medical history in a medical exam out of that process. Although exceptions exist and there may be ways to restructure the process to mitigate the risk, the statute's prohibition does create potential liability. Here, the employer has a 5-year consent decree (with the attendant costs and intrusions), had to pay a six-figure settlement, expended attorneys' fees, and will have the dubious honor of being featured in EEOC press releases, publications and speeches for the foreseeable future. EEOC's message with this case is that employers cannot ignore the family medical history provision, now five years in existence. This case also allowed EEOC to add a systemic case to its ledger and claim enforcement of one of the six priorities under its new Strategic Enforcement Plan, namely "emerging issues in equal employment law." Employers should review the consent decree and evaluate their own practices with respect to medical examinations.