How much do you really know about the Genetic
Information Nondiscrimination Act? Here's a quick quiz:
Which of the following is an unlawful request for
I promise to give you the answer at the end of this post.
Meanwhile, if you haven't already read about the EEOC's recent
GINA settlement with Fabricut, go here and read, and you will get a great
big hint THAT THE CORRECT ANSWER IS "ALL OF THE ABOVE."
Certainly 1 and 2 are obvious. That is what most people
think of when they think of "genetic information." But, as I've been
warning for quite some time, the definition of "genetic information"
is much broader than that. Just about any request for family medical history is
considered a request for "genetic information."
OK, I know what you're thinking . . .
But doesn't the Americans with Disabilities
Act let you send an employee for a pre-employment physical? Yes. And
what if the doctor just asks those questions and you don't even know because
the doctor isn't your employee? It doesn't matter. You are still liable. And,
anyway, what doctor worth his salt would not ask a patient about family
medical history? You are absolutely right. If I were you, I'd write my
I know another thing you're thinking . . .
How can it be "genetic information"
about the employee when you're asking about a spouse or an adopted child? I know! They
aren't even blood relatives. That makes no sense whatsoever. I hear ya.
Unfortunately, nobody asked me for my opinion.
Well, Robin, what good are you?
Not much, but I did accurately predict when GINA was new
that it would become a popular "add-on" claim when the EEOC or a
plaintiff was really trying to establish a violation of the ADA or another law
with medical implications. Sure enough, it appears that the EEOC did exactly
that in the Fabricut case. The charging party claimed that she was rejected for
a job (in violation of the ADA) because the doctor determined that she had
carpal tunnel syndrome, which she denied having. Then, apparently, the EEOC got
her medical records and saw what the company's doctor was asking. Family
medical history all over the place. So Fabricut promptly agreed to settle. Even
though the company might have had some strong defenses to the ADA claims, it
sounds like the EEOC had 'em on the GINA violation.
Here is what I'd suggest you do to have a clean
GINA bill of health:
In case you missed it, the correct answer to the quiz was
"ALL OF THE ABOVE." Did you ace it? I have no doubt!
Visit the Employment and
Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and employment
law firm Constangy, Brooks & Smith, LLP.
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