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.
After the lawsuit was filed, was sold to another operating facility. However, if the original founders of Pavilion were to resume their activity as a nursing and rehabilitation nursing home, the consent decree would apply to them and would require Founders Pavilion to post notices and send a memo to employees regarding the lawsuit and consent decree. Founders Pavilion will also be required to adopt a new anti-discrimination policy that will be distributed to all employees provide antidiscrimination training to all employees and provide periodic reports to the EEOC regarding any internal complaints of discrimination.
Besides, the nursing facility that bought Defendant when the lawsuit started agreed as a non-party signatory to the consent decree and will revise their antidiscrimination policies and will include specific references to genetic information discrimination, disability discrimination, and pregnancy discrimination laws and will include a complaint and investigation procedure for employee complaints of discrimination. They will also provide antidiscrimination training to all of its employees.
If you believe you are disabled under the New York State Human Rights Law, the New York City Human Rights Law, Genetic Information Nondiscrimination Act and/or the American with Disabilities Act and are being discriminated against by your employer, please contact The Harman Firm, LLP.