Articles Posted in Genetic Discrimination

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Lev Craig and Edgar M. Rivera, Esq.

When Philip Sullivan decided to apply for a warehouse job at Grisham Farm Products, Inc. (Grisham), he learned that Grisham required all applicants to complete a 3-page “Health History” as part of their employment application. This form asked applicants to respond to 43 questions concerning their medical histories, including whether they had consulted with a healthcare provider in the past 24 months or suffered from specific medical issues, such as heart conditions, depression, and sexually transmitted infections, among others.

As Mr. Sullivan has disabilities, he was worried that his answers would reveal them and thus negatively impact his chances in the hiring process; therefore, he decided not to apply for the job and instead contacted the Equal Employment Opportunity Commission (EEOC). The EEOC sued Grisham on his behalf, alleging violations of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). The ADA prohibits employers from inquiring into a person’s medical history before making a conditional offer of employment, and GINA prohibits employers from requesting genetic information from job applicants.

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Yaralyn Mena and Edgar M. Rivera, Esq.

Atlas Logistics Group Retail Services (Atlas), which operates warehouses for the storage of products sold at a variety of grocery stores, found itself in a bizarre situation after discovering human feces on the floor of one of its warehouses. Apparently, an Atlas employee had been defecating in the warehouse, resulting in the destruction of grocery products. Atlas had no idea who the “devious defecator” was, and no employees were coming forward with any information. The ongoing incidents provoked Atlas to conduct an in-house investigation. In a misguided effort to identify the perpetrator, Atlas subjected several employees, including Jack Lowe and Dennis Reynolds, to cheek swabs to check their DNA against that found in the feces. Atlas told Mr. Lowe and Mr. Reynolds that if they refused to be tested, they would be disciplined. Lowe and Reynolds complied; they were not matches, and the serial defecator presumably remains at large.

Lowe and Reynolds sued Atlas pursuant to the Genetic Information Non-Disclosure Act (GINA). Under GINA, employers cannot attain, or require employees to disclose, employee genetic information for any employment purpose, including hiring, firing, promotions, and training. Lowe and Reynolds alleged Atlas violated GINA by requiring them to take the cheek swab with the intent to extract DNA and sending that genetic information to a third party. Atlas did not inform the employees of their rights under GINA and told them not to tell other employees of the request for their DNA sample.

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On January 13, 2013, Founders Pavilion, Inc., a former nursing and rehabilitation center, agreed to pay $370,000 to settle a discrimination lawsuit filed by the U.S Equal Employment Opportunity Commission (EEOC) in a genetic information discrimination lawsuit. Before settling the case, the parties tried to settle through the EEOC conciliation process.

This case was brought under the Genetic Information Nondiscrimination Act of 2008 (“GINA“), the Americans with Disabilities Act of 1990 (“ADA“), Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991. GINA prohibits employers and health insurers from treating employees or applicants differently and/or unfairly because of differences in their DNA that increase their chances of getting a certain disease. Addressing issues related to genetic discrimination is part of the EEOC strategy of targeting emerging and developing issues in equal employment law (other priorities include: i) eliminating barriers in recruitment and hiring, ii) protecting immigrant, migrant and other vulnerable workers, iii) enforcing equal pay laws, iv) preserving access to the legal system and v) preventing harassment through systemic enforcement and targeted outreach). Genetic discrimination is one of the six national priorities identified by the EEOC’s Strategic Enforcement Plan for Fiscal Years 2012 – 2016.

Defendant, as part of its hiring process, required some applicants and employees to provide some genetic information regarding family medical history in violation of GINA. Besides, Plaintiff claimed that Defendant terminated two individuals because they were disabled, and terminated another disabled individual after failing to provide her a reasonable accommodation during her probationary period. Defendant agreed to settle the case and as part of a five-year consent decree resolving the suit, Founders Pavilion will provide a fund of $110,400 for distribution to the 138 individuals who were asked for their genetic information. Founders Pavilion will also pay $259,600 to the five individuals who the EEOC alleged were fired or denied hire in violation of the ADA or Title VII.

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