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Sep 4, 2013

Recent Suit by the EEOC Makes Clear that the Genetic Information Discrimination Act (GINA) Applies Whenever an Employer Asks For Employees' Family History

The EEOC recently filed a lawsuit against The Founders Pavilion, Inc., alleging that the company violated the Genetic Information Discrimination Act (GINA). In the suit, the EEOC charges that a New York nursing and rehabilitation center violated federal law when it asked for applicants’ family medical history as part of a post-offer, pre-employment medical exam. The Founders suit is the second ever GINA lawsuit filed by the EEOC.

Although the most publicized portions of GINA tend to deal with a more “modernized” definition of genetic information, such as information about an individual’s genetic tests or the genetic tests of a family member, the Founders lawsuit makes clear precisely how all-encompassing GINA’s definition of genetic information can be. For instance, the knowledge that an individual’s family member suffers from breast cancer can give rise to an inference that the individual would be predisposed to acquiring the condition in the future.

However, the definition of genetic information is not so all-encompassing that an inadvertent disclosure of genetic information would give rise to a violation. Indeed, the EEOC addresses the “water cooler problem” whereby a manager or supervisor learns of genetic information by overhearing a discussion between co-workers about their health or the health of their family members. Had Founders acquired this information in such a manner it would not have constituted a violation.

The take-home lesson of the Founders suit as it applies to GINA is that employers should be aware of how extensive the definition of genetic information is. A  discussion or employer request for information that does not delve into technical information about an employee’s or applicant’s genetic history,  or his specific medical data, can still give rise to a violation.