Wednesday, July 24, 2013

EEOC Files First GINA Lawsuits Attacking Post-Offer Medical Exams

The Equal Employment Opportunity Commission (EEOC) filed two lawsuits against employers for their use of post-offer medical exams this past May alleging violations of the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA).  These are amongst the first ever GINA lawsuits filed by the EEOC and one of the suits settled almost immediately for $50,000.

In the first lawsuit, EEOC v. Fabricut, Inc., an applicant was sent to an employer's medical examiner for a post-offer medical examination where the examiner's standard questionnaire asked the applicant to identify and disclose disorders in her family history, including heart disease, diabetes, and arthritis. The examiner concluded that the applicant had carpal tunnel syndrome and the employer withdrew its offer of employment.  The EEOC sued the employer, alleging the employer violated GINA by requesting the family medical history on the questionnaire and violated the ADA by incorrectly "regarding" the applicant as having a disability.  This case has settled for $50,000.

In the other lawsuit, EEOC v. Founders Pavilion, Inc., a claim of pattern or practice was alleged against a New York nursing and rehab center claiming it violated GINA by requesting family medical history in its post-offer medical exams. The EEOC also alleges that the employer violated the ADA by withdrawing offers of employment based on the results of its post-offer medical exams.

GINA prohibits employers from requesting, requiring, or purchasing genetic information from applicants or employees, including family medical history. 

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