This May, the EEOC filed two enforcement actions against employers for violating the Genetic Information Nondiscrimination Act (GINA).  GINA prohibits use of genetic information, which is commonly in the form of family history, during the hiring process, and precludes employers from “requesting, requiring, or purchasing” genetic information on an applicant or employee.  GINA has a safe harbor provision for employers that inadvertently discover an applicant’s genetic history; but, that inadvertently acquired information cannot affect the hiring process.  While the law was passed in 2008, the EEOC never previously filed an enforcement action.

Fabricut Inc., an Oklahoma distributor, violated GINA by requesting a family medical history in the post-offer medical examination.  Fabricut Inc. rescinded a job offer because of the medical examination results.  The lawsuit was settled with a $50,000 payment by Fabricut Inc. and an agreement to take specified actions designed to prohibit future discrimination.

Another suit is still in litigation against Founders Pavillion, Inc., a New York nursing and rehabilitation facility.  They are accused of violating GINA by conducting post-offer, pre-employment medical examinations that requested a family medical history.

This increase in GINA enforcement actions is consistent with the EEOC’s 2013-2016 Strategic Enforcement Plan which includes addressing genetic discrimination.