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Although the lawsuit was only settled for $50,000, the Equal Employment Opportunity Commission (“EEOC”) made news this month when it brought and settled the ever lawsuit based on the Genetic Information Nondiscrimination Act (“GINA“). Signed into law on May 21, 2008 by President George W. Bush, GINA protects employees from being discriminated based on characteristics of their DNA. Except for limited exceptions, it also makes it illegal for employers to request or otherwise obtain genetic information, which includes seeking family medical history. If an employer does obtain genetic information about an employee or applicants, GINA makes it unlawful for that employer to disclose that genetic information to anyone, including other employees. Like other anti-discrimination and harassment laws, GINA makes it unlawful an employer to retaliate against an employee or applicant who has filed a charge of discrimination, participates in a discrimination proceeding, or opposes genetic discrimination.

The facts of the genetic discrimination and case: Rhonda Jones worked as a temporary employee of Fabricut, Inc., a fabric distributor. Nearing the end of her 90 day assignment, Jones applied for a permanent employment position. Shortly thereafter, Fabricut offered Jones the permanent position, but then, according to the complaint, sent Jones to a third party medical screener for a pre-employment drug test and physical. Per the complaint, Jones was required at that time to answer written questions about her family’s history of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis, and mental disorders that she may have. In response to the report of its doctors, Fabricut instructed Jones to be evaluated for carpal tunnel syndrome by her personal physician and to provide the company with the results. Jones’s physician reported that Jones did not have carpal tunnel syndrome. Nonetheless, Fabricut rescinded its job offer to Jones because its medical examiner reported that Jones did have carpal tunnel syndrome. According to the EEOC, “Jones made a written request for reconsideration, emphasizing that she does not have CTS, but Fabricut ignored her plea.”

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The lawsuit asserted that Fabricut had violated GINA because the medical examiner requested Jones’s family medical history and then violated the Americans with Disabilities Act (“ADA”)

by rescinding the offer of employment based on its perception that Jones had a disability, i.e. carpal tunnel syndrome.

When our employment discrimination attorneys discussed this, we came away with a few key take aways: First, any applicant or employee who is asked for personal or family medical history as part of interviewing process for a new job or promotion, should object and contact an employment attorney immediately – objecting or affirmatively refusing to provide this information puts the applicant or employee in a protected class. Second, there mere asking for this information is the problem and the employer cannot avoid liability if the employee or applicant ends up not having the genetic condition. Third, this is another great example of the recent expansion under the ADA of what constitutes a disability. And, forth, to have protection under the ADA, the applicant or employee does not have to actually have the disability as long as the employer perceives that a disability exists.

In addition to Fabricut agreeing to pay the $50,000 settlement, it also most post an anti-discrimination notice to employees, disseminate anti-discrimination policies to employees, and provide anti-discrimination training to employees with hiring responsibilities.