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EEOC Sues BNV Home Care Agency, Inc. for Gathering Employee Health Data in Violation of the Genetic Information Nondiscrimination Act

On September 17, 2014, The Equal Employment Opportunity Commission (EEOC) filed a lawsuit against New York home health care agency BNV Home Care Agency, Inc. (“BNV”) for violating the Genetic Information Nondiscrimination Act (GINA). The complaint alleges that the company gathered extensive information from employees and prospective employees about their personal and family medical history. By allegation, complainant Yelena Sheglov and thousands of similarly-situated individuals have been asked to “indicate illnesses experienced by you or your family” by checking boxes on a questionnaire containing a list of 29 health conditions including diabetes, kidney disease, heart disease, high blood pressure, arthritis, mental illness, epilepsy, and cancer. The Commission further alleges that “Defendant BNV requests that all applicants who are given conditional offers of employment complete this health assessment form when the applicants are offered employment but before they are officially hired.” Then, “once hired, all employees are required to complete the form annually.”

Section 202(b) of Title II of the GINA makes it “unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee,” except under a list of specific circumstances. EEOC New York Regional Attorney Robert D. Rose stated in a recent press release that “GINA is clear: employers cannot ask applicants or employees for their family medical history.” He continues: “the EEOC will pursue these cases to the fullest extent of the law to ensure that such genetic inquiries are never made of applicants or employees.”

Employers have been on notice about this for some time. The law was enacted in 2009 and, as attorney Konrad Batog, trial attorney assigned to the BNV case, states: “employers by now should have reviewed their procedures and practices to make sure that they or their agents do not violate the law by asking for family medical history.”

The law is an attempt to shield individuals from forms of discrimination made possible by advances in genetic technology which allow researchers and doctors to test for more and more health conditions that would have implication for an employer. An older example cited in the law itself is sickle cell anemia, but now a person’s risk for conditions from Huntington’s disease to cancer can be determined through genetic testing, and an increasing number of cases are arising in which people have suffered adverse employment actions when such information was disclosed to their employers.

Another motivation for the law is less direct, but no less important: the possibility of having genetic information misused tends to discourage people from consenting to participate in medical research, or getting tested for detectable conditions in the course of their regular medical care.

In the EEOC’s action against BNV, the defendant would be required (i) to change its policies and stop gathering genetic information from employees, (ii) compensate Sheglov and similarly situated individuals for their pecuniary and non-pecuniary losses, (iii) to pay any regulatory damages owed, and (iv) to pay the Commission’s costs in the lawsuit.

If you are an employee and you believe your medical history has been unlawfully acquired by your employer, please contact The Harman Firm, LLP.

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