Daily Archives: May 17, 2013

EEOC’s First GINA Suit Settlement

The first settlement between the EEOC and an employer over GINA is important because it brings attention to this relatively new law.  EEOC charges alleging GINA violations have increased each year.  Consequently, it is important for employers to ensure their policies and procedures are compliant with GINA procedures.

The Genetic Information Nondiscrimination Act (GINA) went into effect in 2009.  Some of GINA’s regulations are as follows.

  • It is illegal for employers to discriminate against employees or applicants based on their genetic information.
  • Employers cannot request or obtain genetic information, which includes any information about an employee or an applicant’s family history.
  • GINA also applies to third parties.  So, employers cannot request or obtain family medical history, even through a third-party medical provider or examiner.
  • There are exceptions for voluntary health risk assessments.  However, if the employee is receiving an incentive for completion of the Health Risk Assessment, the employer must make clear that an employee need not answer any of the questions about family medical history in order to obtain the incentive.

On May 7, 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”) reached a milestone of sorts as it filed – and then settled – its first complaint ever alleging genetic discrimination under the Genetic Information Nondiscrimination Act of 2008 (“GINA”).

The EEOC filed suit in Oklahoma federal court against Fabricut Inc., one of the world’s largest distributors of decorative fabrics, alleging that Fabricut violated GINA and the Americans With Disabilities Act (“ADA”) by unlawfully asking a job applicant for her family medical history in a pre-employment, post-job offer medical examination, and allegedly rescinding her job offer based on the belief that she had carpal tunnel syndrome.

The EEOC and Fabricut reached a settlement, which is the first settlement in a GINA case.  In the consent decree, Fabricut agreed to pay $50,000 but did not admit to violating GINA or the ADA.

via EEOC’s First GINA Suit Serves As Reminder of Pre-Employment Exam Pitfall | Proskauer Rose LLP – JDSupra.

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Filed under civil rights, discrimination, employment, federal, regulations, rules

Evidence destruction leads to ruling U.S. was negligent

Under the civil rules of procedure, a sanction for the destruction of evidence would include an adverse finding.  In other words, if you are a party to a lawsuit and destroy evidence, the court may find that you were guilty of the allegations.

One of the reasons for this is that now, the court has no way of telling what the evidence said.  Would the evidence point to the party knowing about the problem?  Would the evidence show the party did nothing while it knew?  Would the evidence show nothing?

That is why it is so important to write a Spoliation Letter.  An Spoliation Letter is a letter that explains your duty to preserve evidence.  The letter explains that because there is a lawsuit (or there will be one), you now have to stop destroying evidence.

As an attorney, regardless of what side you are in, you have a duty to advise your client.  A big part of discovery is finding relevant evidence.  It would be against the idea of justice to go about destroying evidence.

This case highlights the importance of not destroying evidence.  In this case, in 2009, a 9-year old boy was at a mountain trail in Lassen Volcanic National Park when the retaining wall gave way.  Unfortunately, the boy died from this accident.

Court records show a complaint that the chief of maintenance shredded all of his documents, some of which dealt with visitor safety issues.  The documents were shredded sometime around December 2009 and January 2010.

As a sanction for destruction of evidence by the National Park Service in a wrongful death case, a federal judge in Sacramento, Calif., ruled Tuesday that the United States was negligent.

U.S. District Judge Nunley, held that the government was negligent “for all purposes in this case.”  The judge found that the government “purposely destroyed” the remains of the retaining wall, and that the park director and some staff knew the wall was unsafe, the newspaper says.

“What is less clear, although highly suspicious, is whether defendant [destroyed] evidence other than the wall,” U.S. Magistrate Gregory G. Hollows wrote in a previous decision.

Still undecided in the case and expected to be addressed at a June hearing is whether the government can assert a “discretionary function” defense under the Federal Tort Claims Act. The government argues that those in charge of the park had discretion to decide whether or not to repair the wall, and hence the government cannot be held liable for their decision-making.

via As sanction for destroying evidence, federal judge finds US negligent in wrongful death case – ABA Journal.

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Filed under courts, discovery, District Court, electronic discovery, legal decision, rules, sanctions