EEOC Files and Settles Its First GINA-based Employment Discrimination Lawsuit on May 7, 2013

Stethoscope & Laptop Jennifer K. Wagner, J.D., Ph.D., is a solo-practicing attorney in State College, PA and a research associate at the University of Pennsylvania’s Center for the Integration of Genetic Healthcare Technologies.

The Equal Employment Opportunity Commission (EEOC) issued a statement that it had filed a lawsuit against Fabricut, Inc. on May 7, 2013 in the U.S. District Court for the Northern District of Oklahoma, making it the first lawsuit brought by the agency to enforce genetic nondiscrimination rights afforded by Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). A consent decree was filed concurrently, thereby settling the lawsuit on the same day.

Facts of the Case and Details of the Settlement (as reported by the EEOC statement). Rhonda Jones had been working as a temporary memo clerk for Fabricut, Inc. When her temporary employment was nearing an end, she applied for a permanent position with the company. Fabricut, Inc. initially offered her the position but then ran afoul of GINA Title II when, as part of its pre-employment medical examination, it allegedly requested family history on a variety of specific conditions. As previous GLR coverage has discussed, GINA defines “genetic information” broadly to include family medical history. On the basis of the information provided during the pre-employment medical examination, Fabricut allegedly required Jones to obtain additional testing to rule out carpal tunnel syndrome (CTS). While subsequent testing did rule out CTS and Jones provided that information to Fabricut, Fabricut allegedly rescinded the job offer on the basis of the pre-employment medical examination and its view that she had CTS.

As part of the consent decree settling the case, Fabricut agreed to pay $50,000 in damages. The company also agreed to undertake corrective actions that include posting a non-discrimination notice to employees. GINA requires that employers post a non-discrimination notice, and “Equal Employment Opportunity is the Law” posters are readily available on the EEOC website. Fabricut also agreed to have its employees responsible for hiring decisions undergo non-discrimination training and further agreed to distribute non-discrimination policies to its employees.

Significance of the Case. Although individuals have brought complaints against employers alleging GINA violations, this is the first lawsuit initiated by the EEOC to enforce GINA. The EEOC, charged with enforcement of the employment protections of Title II of GINA, provides a summary of the intake and resolution of GINA complaints brought to the agency’s attention. (Similar data have been provided online by the Department of Health and Human Services’ Office of Civil Rights (OCR), the agency charged with enforcement of the health insurance protections of GINA Title I; however, no enforcement data have yet been posted for fiscal year 2012, with the limited exception of press releases to highlight resolution agreements for selected cases.) For previous GLR coverage of GINA Title II, see here and here.

The Fabricut case is a reminder of cases that led to GINA’s eventual passage, including EEOC v. Burlington Northern and Sante Fe Railway Company, 2002 WL 32155386, which also involved employer interest in carpal tunnel syndrome information from employees. Together, these cases highlight the close connection between conduct prohibited under GINA and conduct prohibited under the Americans with Disabilities Act of 1990 as amended (42 U.S.C. §12101 et seq., Pub. L. 101-336). GINA Title II prohibits both the acquisition and the use of genetic information in employment contexts. The ADA prohibits employment discrimination on the basis of disability, but defines disability broadly to include “(a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment.” (42 U.S.C. §12102(2)). This third definition (an inherently subjective determination), when combined with widely-held views of genetic determinism, widespread genetic illiteracy, and the breadth of GINA’s statutory definition of “genetic information”, ensures that GINA Title II and ADA claims will be brought concurrently when individuals believe themselves to be the victims of genetic discrimination in employment contexts.

Importantly, GINA Title II regulations provide “Safe Harbor” language (see 29 CFR 1635.8(b)(1)(i)(B)) that can help employers to avoid the trap of an unlawful acquisition of genetic information during the hiring process. Use of the “Safe Harbor” language means that any genetic information (e.g., family medical history) disclosed to the employer will be deemed an “inadvertent” discovery rather than an unlawful request for and acquisition of genetic information. However, the safe harbor language provides no defense for the employer that subsequently tries to use any genetic information in its employment decisions. As a reminder, GINA regulations do not provide employers with a bona fide occupational qualification (BFOQ) defense for use of genetic information (again, including family medical history) in reaching an employment decision.

Data are currently unavailable regarding the level of GINA awareness specifically among employers and those medical practitioners engaged in pre-employment (sometimes called “fitness for duty”) examinations. Available empirical data of GINA awareness among physicians (Laedtke et al. 2012) and consumers (Allain, Friedman, and Senter, 2012), as well as public knowledge and awareness of genetics (e.g., Haga et al. 2013) collectively suggest that substantial educational efforts (e.g., from public service announcements to formal education initiatives) may be needed before GINA, a largely symbolic law, is to have any meaningful impact. The Fabricut case suggests that the EEOC may have decided that filing this lawsuit – even when filing the settlement concurrently – may be a useful approach to spread the word.