Tag Archives: applicants

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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Facebook, US Senators Say Employers Who Seek Job Applicants’ Passwords Could Be Violating the Law – News – ABA Journal

Citing “a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles,” Facebook’s chief privacy officer warned in a Friday post on the social network’s website that the company could “initiate legal action” against employers who do so.

The comment by Erin Egan suggested that information obtained in this manner could put employers at risk of a discrimination suit, reports Reuters.

Her comment follows news last week that lawmakers in at least two states, Illinois and Maryland, are considering possible legislation to prohibit employers from pressuring job applicants to provide their Facebook passwords. Lawmakers in California and Massachusetts also are mulling such legislation, the Associated Press reports.

Meanwhile, the Hill and the Technolog page of msnbc reported Monday that two U.S. senators are asking federal agencies to determine whether employers who act in this manner are violating statutes concerning computer use.

They are Sen. Richard Blumenthal, D-Conn, and Sen. Charles Schumer, D-N.Y.

The two asked the Department of Justice and the Equal Employment Opportunity Commission to investigate whether federal laws such as the Computer Fraud and Abuse Act and the Stored Communications Act are violated by the practice and say they are drafting legislation to make clear that the practice is illegal.

In a written statement, the American Civil Liberties Union earlier called a Maryland Department of Corrections practice of asking applicants to browse through their Facebook accounts in the presence of an interviewer an invasion of privacy, the Reuters article reported.

“You’d be appalled if your employer insisted on opening up your postal mail to see if there was anything of interest inside,” said attorney Catherine Crump of the ACLU. “It’s equally out of bounds for an employer to go on a fishing expedition through a person’s private social media account.”

via Facebook, US Senators Say Employers Who Seek Job Applicants’ Passwords Could Be Violating the Law – News – ABA Journal.

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