BNV Home Care Agency, Inc. (BNV), a home health care business based in New York, was recently the defendant in a claim alleging the company violated provisions of the Genetic Information Non-Discrimination Act (GINA), which became law in 2009. Title II of this Act makes it unlawful to discriminate against employees or job applicants based on genetic information. GINA forbids an employer from making employment decisions because of genetic information and places restrictions on requesting, requiring, purchasing and disclosing such information. Like other federal employment discrimination laws, the Equal Employment Opportunity Commission (EEOC) is the agency that oversees and enforces the workplace provisions of GINA.
The premise behind GINA is that an employer may never use genetic information because it is irrelevant to a person’s ability to work at the current time. Using genetic information to make any decision about hiring, firing, assigning work, compensating or providing benefits is discriminatory. Harassing someone because of their genetics is also unlawful, as is retaliating for complaining or reporting such behavior. Employers may not disclose genetic information – it must almost always be kept confidential.
Under GINA it is usually illegal for an employer to get the genetic information of an applicant or employee. According to the EEOC, there are some very narrow exceptions. They are:
According to Home Health Care News, The EEOC filed a discrimination case against BNV Home Care Agency in 2014. The lawsuit alleged that the company, which provides companionship and care services for senior citizens in New York, including Brooklyn, New York City, Westchester, Queens and Staten Island, violated GINA by unlawfully asking for genetic information when it requested family medical histories from employees.
According to the complaint, BNV asked employees, and applicants who were given conditional offers of employment but not yet fully hired, to complete an “Employee Health Assessment Form.” The form, used by the company since 2009, required each person to check “yes” or “no” to “indicate illness experienced by you or your family.” The 29 health conditions listed on the form included, among other things, cancer, diabetes, heart disease, high blood pressure and mental illness. The complaint alleges that BNV’s practice violates GINA because it unlawfully asks for genetic information, and the information as used by BNV causes adverse consequences for employees and conditional employees.
The parties settled the case, and BNV signed a consent decree. Under the terms of the settlement, BNV will pay the aggrieved employees and applicants $125,000. According to one report, “The company will also be required to remove questions about genetic information from its assessments as well as conduct anti-discrimination training.” Judy Kenan, acting New York District Director of the EEOC stated, “Forcing employees and applicants to provide genetic information in order to maintain or obtain their jobs is clearly against federal law, and EEOC will continue to combat this form of discrimination.”
It may be difficult for you to determine whether your employer is using or trying to use your genetic information to discriminate. Has your supervisor asked personal questions about your family medical history? Did you fill out a medical history form before or during a job interview? Have your conditions of employment changed after sharing health information?
Keep an eye out for indications that your employer may be violating GINA. If you have any questions about discrimination in the workplace or wish to discuss filing a claim with the EEOC, contact experienced New York employment lawyers at Leeds Brown. Someone is available to take your call 24/7 at 1-800-585-4658.