May 15, 2013

EEOC’s first GINA suit settled for $50,000

Posted in Americans with Disabilities Act, Disability, Discrimination, Genetic Information, Genetic Information Non-discriminaton Act (GINA), Regarded as Disabled tagged , , , , , , at 10:14 am by Tom Jacobson

I’m a fan of the The Big Bang Theory — the TV show, that is.

Jim Parsons, as Dr. Sheldon Cooper in "The Big Bang Theory"

Jim Parsons, as Dr. Sheldon Cooper in “The Big Bang Theory”

For the uninitiated, it’s a CBS sitcom revolving around the lives of four Caltech scientists, including the narcissistic theoretical physicist, Dr. Sheldon Cooper, who once proclaimed his genetic superiority by divulging that he has, “a sister with the same basic DNA mix who hostesses at Fuddruckers.”

The Big Bang cast can joke all they want about their family history. However, Tulsa, OK-based Fabricut, Inc. has learned that misusing such information at work can be costly, for it has agreed to pay $50,000.00 to settle the EEOC’s first lawsuit under the Genetic Information Nondisclosure Act (GINA).

According to the EEOC’s suit, Fabricut offered Rhonda Jones a job and then sent her to a contract examiner for a pre-employment drug test and physical. As part of the exam, Jones was subjected to medical testing and required to disclose disorders in her family medical history. The examiner concluded that more testing was needed to determine whether she suffered from carpal tunnel syndrome (CTS). Fabricut then asked Jones to be evaluated for CTS by her personal physician. She complied, and her doctor concluded that she did not have CTS. Nevertheless, the company rescinded its job offer because its contract examiner indicated that she did have CTS.

The EEOC alleged this violated GINA. Enacted in 2009, GINA is a federal law that makes it unlawful for covered employers to discriminate against employees on the basis of their genetic information, including family history. It also restricts employers from requesting, requiring or purchasing such information. The EEOC also alleged that Fabricut violated the Americans with Disabilities Act (ADA).

In the consent decree settling the case, Fabricut agreed to pay $50,000.00, plus

  • Post an anti-discrimination notice to employees
  • Disseminate anti-discrimination policies to employees
  • Provide anti-discrimination training to employees with hiring responsibilities.

What you need to know: The EEOC has now identified genetic discrimination as one of it enforcement priorities. According to EEOC Regional Attorney Barbara Seely, “Although GINA has been law since 2009, many employers still do not understand that requesting family medical history, even through a contract medical examiner, violates this law.” Thus, employers and employees need to understand their rights and responsibilities under GINA.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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January 12, 2012

Federal court reaffirms importance of harassment policies

Posted in Color, Disability, Discrimination, Employee Handbooks, Gender / Sex, Genetic Information, Harassment, Harassment, Marital Status, National Origin, Race, Religion, Sexual Harassment, Sexual Harassment, Sexual Orientation tagged , , , , , , , , , at 11:07 am by Tom Jacobson

I am often asked if employers must have a written policy prohibiting sexual and other forms of unlawful harassment. The short answer is no, for there is no statute, regulation or court decision mandating such policies. However, and it is a big however, implementing such policies is clearly the best practice. And, as reaffirmed by the United States Eighth Circuit Court of Appeals on January 11, 2012, having a written policy can be the key to successfully defending harassment charges.

The case is Crawford v. BNSF Railway Co. In this case, BNSF had a “zero tolerance” policy on workplace harassment. Among other things, the policy defined the prohibited conduct, instructed employees to report complaints through one of five channels (one of which was an anonymous employee hotline), explained that  allegations would be investigated “promptly, impartially, and confidentially,” included guidelines explaining the ranges of discipline BNSF might apply to offenders, and contained a provision prohibiting retaliation for reporting discrimination. BNSF also trained employees on how to report harassment.

In this case, five employees alleged that they were victims of unlawful harassment by their supervisor. Specifically, they claimed that their supervisor engaged in a long litany of inappropriate behaviors ranging from fondling and sexual comments to requests for sexual favors, mimicked sex acts, and racial slurs.

Eight months after the alleged harassment began, the employees filed discrimination charges with the Nebraska Equal Opportunity Commission (NEOC) and the Equal Employment Opportunity Commission (EEOC).  One of the employees then reported the harassment directly to BNSF. BNSF conducted an investigation, which included interviewing four of the plaintiffs. Within two days, BNSF placed the supervisor on administrative leave. After completing its investigation less than two weeks later, BNSF informed the supervisor that he was being terminated, and the supervisor then chose to resign.

The general rule in such cases is that an employer is liable for the unlawful harassment committed by its supervisors unless it can show that: (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm.

Noting the existence of BNSF’s zero tolerance policy and its swift action after receiving the employees’ complaint, the court concluded that BNSF had exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Then, noting that the employees had not availed themselves of BNSF’s complaint procedure, the court also ruled that they had  unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Accordingly, the court held that it was appropriate to dismiss the employees’ claims. Importantly, the court stressed that “‘distribution of a valid antiharassment policy provides compelling proof’ that an employer exercised reasonable care to prevent and correct promptly harassing behavior.

Thus, the Crawford v BNSF case clearly illustrates that the best practice for employers is to implement and distribute harassment policies, for without them, employers will find it extremely difficult, if not impossible, to defend claims on the basis that they exercised reasonable care to prevent and correct promptly harassment.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

November 30, 2010

Savvy employers get GINA safe harbor under new EEOC regulations

Posted in Genetic Information, Genetic Information Non-Discrimination Act, Genetic Information Non-discriminaton Act (GINA) tagged , , , at 8:44 pm by Tom Jacobson

The federal Genetic Information Non-Discrimination Act of 2008 (GINA) may sound like a law that employers can ignore.  The name alone suggests that it should only apply to employers who are  involved in medical research or who require in-depth pre-employment medical examinations that delve into to the genetic makeup of applicants or employees.  However, GINA applies to practically every employer in the U.S. with fifteen or more employees, and its restrictions are quite broad.

For example, GINA prohibits employers from discriminating against employees or applicants because of genetic information, and it limits the situations under which employers may acquire and retain genetic information.   This may still seem like the law would rarely apply.   Afer all, what employer would ask for information about an applicant’s or employee’s DNA?  However, the definition of “genetic information”  is extremely broad.  It includes not only information about an individual’s genetic tests and the genetic tests of his or her family members, but it also includes “the manifestation of a disease or disorder in family members …”.   Thus, questions about “family history” during work-related medical examinations become problematic.

Although GINA generally prohibits employers from acquiring their employees’ and applicants’ genetic information, there are exceptions, such as when genetic information is acquired inadvertently.  New regulations passed by the Equal Employment Opportunity Commission have now clarified how employers can take advantage of this exception.  The regulations, which went into effect on January 10, 2011 state that “If a covered entity acquires genetic information in response to a lawful request for medical information, the acquisition of genetic information will not generally be considered inadvertent unless the covered entity directs the individual and/or health care provider from whom it requested medical information (in writing, or verbally, where the covered entity does not typically make requests for medical information in writing) not to provide genetic information.”  The new regulations also provide sample language that an employer can use to provide this notice.  If an employer receives genetic information after giving such notice, the employer will enjoy a “safe harbor” defense because the receipt will be deemed inadvertent.

Thus, employers who seek medical information about applicants and/or employees should provide an appropriate GINA notice to those individuals.  Doing so will help preserve this safe harbor defense for those savvy employers.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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