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Can an Employer Require Genetic Information as a Condition of Employment?

You get a job offer, but then your new employer requires a pre-employment medical exam, as part of which a family medical history must be submitted. The medical history includes the results of a genetic test. After the exam, the employer rescinds the offer of employment, possibly, you suspect, because your genetic information reveals the possibility that you may be predisposed to some medical problem in the distant future. Is that legal?

No. The Genetic Information Nondiscrimination Act ("Gina") of 2008 prohibits discrimination against applicants and employees on the basis of genetic information. More specifically, it "prohibits the use of genetic information in making employment decisions, restricts employers and other entities covered by the statute from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information." Genetic information broadly includes an individual's genetic tests, family medical history, and the genetic tests of his or her family members.

Last month the EEOC settled its first systemic lawsuit ever filed under GINA (EEOC v. Founders Pavilion Inc., No. 13-CV-06250 (W.D.N.Y. Jan. 9, 2014) The defendant, a nursing and rehab facility, had engaged in the behavior detailed above regarding the medical exam. Also, the EEOC claimed Founders Pavilion fired an employee after refusing to provide her with an accommodation in violation of the Americans With Disabilities Act ("ADA"), refused to hire two women because of a perceived disability, and either refused to hire or fired three women because they were pregnant in violation of Title VII. (Those guys were going for the employment discrimination trifecta!)

The parties reached a $370,000 settlement agreement. The settlement fund is divided into two groups: Founders Pavilion will provide $110,400 for distribution to the 138 individuals who it allegedly asked for their genetic information, and Founders Pavilion will pay $259,600 to the five individuals the EEOC claimed were fired or denied employment for alleged violations of the ADA or Title VII.

If you feel you have been discriminated against because of your medical history, give us a call. You may have a case.

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