GINA Settlement Affects Employment Testing Practices
A recent settlement in the Joy Underground Mining case is a wake up call for employers who retain physicians or therapists to conduct medical examinations and employment tests. Specifically, the details of the case remind us all to review the medical history forms we use to collect what was once routine family information. This case makes it clear that the practice is no longer tolerated by the EEOC.
According to the EEOC’s lawsuit, after making conditional offers of employment, Joy Mining required applicants to undergo a post-offer medical examination. In and of itself this is legal in the condition-hire phase of employer. However, the EEOC charged that Joy Mining improperly requested a family medical history on its pre-placement physical form asking applicants if they had a family medical history for such conditions as Tuberculosis, Cancer, Diabetes, Epilepsy, or Heart Disease.
The last generation of post-offer and functional capacity evaluation (stay-at-work or return-to-work) tests often included such questions. For individuals seeking employment this practice is now forbidden. Employers and service providers, including physicians, are encouraged to update their data collection processes and forms.
This type of data collection and inquiry violates the Genetic Information Non-Discrimination Act (GINA), which protects individuals against employment discrimination on the basis of genetic information, including family medical history. GINA also prohibits employers from requesting, requiring or purchasing genetic information about applicants or employees, except in very narrow circumstances which do not apply in this case. The EEOC filed suit, EEOC v. Joy Underground Mining, LLC, t/a Joy Mining Machinery, Civil Action No. 2:15-cv-01581-CRE, in U.S. District Court for the Western District of Pennsylvania after first attempting to reach a pre-litigation settlement through its conciliation process.
The two year consent decree resolving the lawsuit provides equitable relief and prohibits Joy Mining Machinery from violating GINA and engaging in unlawful retaliation. Joy Mining Machinery will refrain from direct or indirect inquiry regarding genetic information of an applicant or an applicant’s family member, employee, or an employee’s family member except as permitted by GINA. The company will also provide training on GINA to all management and human resources personnel with responsibilities related to hiring. The EEOC will also monitor the company’s compliance in accordance with decree provisions.
EEOC Philadelphia District Director Spencer H. Lewis, Jr. said, “Requiring an applicant or employee to answer questions about his or her family medical history, even when part of an otherwise permissible employment-related medical exam, violates federal law.”
Regional Attorney Debra M. Lawrence of the EEOC’s Philadelphia District Office said, “We are pleased the Defendant cooperated with the EEOC to reach an early resolution of this matter. This case illustrates the need for employers to review all employment-related procedures and forms after the passage of any new federal civil rights law regulating employment, such as GINA, to ensure prospective legal compliance.”
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