The Equal Employment Opportunity Commission (“EEOC”) announced on May 7, 2013 the settlement of the first case it filed under the Genetic Information Non-Discrimination Act (“GINA”). The case was brought against Fabricut, one of the world’s largest distributors of decorative fabrics. The suit alleged that Fabricut violated both the Americans with Disabilities Act (“ADA”) and GINA when it refused to hire a woman who was believed by the Company to have carpal tunnel syndrome.
The applicant had worked for Fabricut as a temporary employee for ninety days and then applied for a regular position with the Company. After an offer of employment was extended, the applicant was sent to the Company’s designated medical clinic for a pre-employment drug screen and physical. When she appeared for the examination, she was required to provide a complete medical history which sought information concerning her family’s history of exposure to a laundry list of medical conditions ranging from high blood pressure and heart disease to “mental disorders”.
In addition to seeking the medical history, the examiner expressed a concern that the applicant was suffering from carpal tunnel syndrome and needed further evaluation. The applicant was sent to her own physician who concluded after administering several tests that she did not have the condition. Nevertheless, Fabricut rescinded the offer of employment.
The EEOC alleged that requesting the family medical history was in and of itself a violation of GINA even in the absence of evidence that the answers contributed to the decision to rescind the offer. The ADA was also violated because the applicant was “regarded as” suffering from carpal tunnel syndrome, and an adverse employment decision was made as a result.
Employers should make certain that those to whom they delegate responsibility for pre-employment screening are not asking unpermitted questions about the applicant’s family medical history. Simply seeking this information will be considered by the EEOC at least, to be actionable discrimination.