The EEOC is firing shots across the bow of employers who continue to ask – illegally – for family medical history as part of employment interviews.

The agency, which enforces the Genetic Information Nondiscrimination Act (GINA) of 2008, has filed its first two lawsuits alleging violations of GINA.

‘Mental disorders’
In one, a Tulsa, OK-based fabric distributor agreed to pay $50,000 for violating GINA’s prohibition on basing hiring decisions on family medical histories. Here, a woman who had been offered a clerical job was asked post-offer about any heart disease, cancer, diabetes, arthritis or “mental disorders” in her family. The offer was eventually rescinded.

In the other case, the EEOC sued a nursing and rehab center in Corning, NY, for requesting family medical history in medical exams. These exams were given to each new hire post-offer, and then annually to the employee.

Steps to take
What can HR do to head off violations of GINA? Consider:

• reviewing any medical questionnaire you administer to insure it doesn’t ask about family medical histories, or about any genetic testing applicants or their families may have undergone.

• checking whether any outside medical testing service you use asks GINA prohibited questions.

• instructing employees not to volunteer genetic information when responding to employment-related medical inquiries, such as those involved in FMLA certification. (The medical history of an employee’s family member may be relevant if the employee is seeking FMLA leave to care for that person, and it’s legal under GINA for you to ask about the history, but there’s no need for the employee to give the information unless you ask.)

Cite: EEOC v. Fabricut Inc.; EEOC v. The Founders Pavilion Inc.

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