I’ll give you a million reasons not to ask employees and applicants about family medical history

The Genetic Information Nondiscrimination Act (GINA) forbids discrimination against employees or applicants because of genetic information. Specifically, Title II of GINA prohibits using genetic information in making employment decisions, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information.

While GINA has been in effect for over ten years, it gets very little attention. Employees bring fewer discrimination charges under GINA than any other federal antidiscrimination statute that the U.S. Equal Employment Opportunity Commission administers. But that doesn’t make it any less important or expensive when violations arise.

Check this out.

Last week, the EEOC announced a $1 million settlement with an employer to resolve a lawsuit the EEOC filed against it, alleging violations of GINA and the Americans with Disabilities Act (ADA) in its hiring procedures.

According to the lawsuit, the employer required applicants to pass a pre-employment medical exam during which they were required to divulge family members’ past and present medical conditions, such as cancer, diabetes, and heart disease. The EEOC also alleged that the employer used qualification criteria that screened out qualified individuals with disabilities. For example, the company allegedly rescinded job offers to applicants whose blood pressure exceeded 160/100 or who had less than 20/50 vision in one eye, even when those impairments did not prevent the applicants from safely performing the job.

So, the EEOC sued on behalf of a class of 498 applicants who, it claimed, had to divulge family medical history during the hiring process and on behalf of another class of qualified applicants whose job offers were rescinded based on their impairments.

Subject to limited exceptions such as inadvertent acquisition of genetic information or getting it in connection with a voluntary wellness program (and meeting specific requirements), employers cannot obtain genetic information from employees. Under GINA, an employer may never use genetic information to make an employment decision because genetic information is irrelevant to an individual’s current ability to work.

Soon after the EEOC filed the lawsuit, the employer changed its hiring practices and, eventually, wrote a large settlement check.

So, reconsider requiring employees to answer questions about the medical conditions of their grandparents, parents, or children. Indeed, soliciting this information is unlawful, regardless of whether the information is used to deny employment.

In other contexts, such as when employees seek leave under the Family and Medical Leave Act, employers should specifically advise employees not to provide genetic information in response to the employers’ requests to certify their serious health condition.