Best Ohio Disability Discrimination Attorney Answer: Can my job ask about my family’s medical history? Can an employer ask if my doctor thinks I’m predisposed to certain health conditions? Can a job application ask if I’m disabled or have medical conditions?
As our employment attorneys at Spitz, The Employee’s Law Firm have written about in the past, the Genetic Information Nondiscrimination Act of 2008 (“GINA“) protects employees from discrimination in the workplace based on the employee’s genetics (GINA & ADA: Employers Cannot Ask For Medical Information). Except in very limited circumstances, GINA prohibits employers from requesting or requiring the genetic information, including personal and family medical histories, of employees and applicants.
GINA applies to all employers with 15 or more employees, for-profit and non-profit alike. While GINA’s protections do not extend to the employees of the federal government, in 2000, President Bill Clinton signed Executive Order 13145, which protects federal employees from genetic discrimination in employment.
The genetic information protected by GINA includes family health history, the results of genetic tests, the use of genetic counseling and other genetic services, and participation in genetic research. GINA makes it unlawful for an employer to use that genetic information in making decisions about hiring, firing, promotion, pay, or any other privileges or terms of employment. Moreover, like many other anti-discrimination laws, GINA makes it unlawful for an employer to retaliate against an individual who had complained about GINA violations. Employers may obtain an employee’s genetic information inadvertently or when the information is publicly available and not run afoul of GINA. Additionally, information obtained as part of an employer’s voluntary health services or an employee’s Family and Medical Leave Act (“FMLA“) request may not violate GINA.
A recent consent order out of the Western District of Missouri illustrates how blatantly some employers try to discriminate in the hiring process. When Phillip Sullivan applied for a position at Grisham Farm Products, he was informed that, if he did not complete a 43 question-long health history form, he would not be considered for any position with Grisham. In fact, the top of the first page of the form instructed candidates that “all questions must be answered.” One of those questions inquired as to whether the candidate suffered from any of 27 different medical conditions, ranging from allergies to depression, heart murmurs, and STDs. Another question asked candidates whether they had consulted with a healthcare provider in the past 24 months, regardless of whether the candidate had a particular diagnosis. The form also asked whether future diagnostic testing had been recommended by the candidate’s healthcare provider.
Sullivan, a retired law enforcement officer with disabilities did not complete the health form, and instead went to the Equal Employment Opportunity Commission (“EEOC“). (See Top Employment Law Attorney: Do Not File With The EEOC Without Doing This First; File With The EEOC Or Get A Lawyer? Call The Right Attorney; Should I Get A Lawyer To Help Me File An EEOC Charge?; and Should I File With The EEOC On My Own? Call The Right Attorney).
After the EEOC conducted an investigation and failed to get a resolution conciliation, an employment discrimination lawsuit was filed on Sullivan’s behalf, alleging that Grisham’s health history forms violated the Americans with Disabilities Act (“ADA“) and GINA.
Because Sullivan was in the pre-offer stage of the hiring process, Grisham was prohibited by the ADA from making any inquiries as to the existence or severity of any disability that Sullivan may have had. Because the health history form would require an applicant with no current diagnosis, but merely a family history, of certain conditions to disclose that history, the court found that Grisham violated GINA:
Grisham Farm’s application requires applicants to reveal whether they have “[c]onsulted a doctor, chiropractor, therapist or other health care provider within the past 24 months” and to identify whether “future… diagnostic testing… [has] been recommended or discussed” with their medical provider. …. These questions would require an applicant without the manifestation of, for example, high blood pressure, heart disease, or breast cancer, who has preventatively “consulted” with a physician or been told by a physician to get diagnostic testing in light of their family history or risk factors, to reveal such information to Grisham Farm. The Court finds the solicitation of such information is a violation of GINA.
While this is a great decision on liability, because the EEOC got to decide when to settled without getting Sullivan’s consent, he only got $10,000. As we’ve discussed in the past, an employee who files a charge with the EEOC has the right to private counsel every step of the way and the best thing to do is to exercise that right.
Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. Call our Ohio employment law attorneys at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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