Last month, the EEOC announced that it had settled the first lawsuit it had ever filed alleging violation of the Genetic Information Nondiscrimination Act (GINA). The employer in the case (Fabricut, a distributor of decorative fabrics) agreed to pay $50,000, post a notice regarding discrimination, and provide anti-discrimination policies and training. Not a lot of clams, but it’s still important: Not only was this the agency’s first GINA case, but it also involved employer conduct that seemed inadvertent, at least as regards GINA. The employee might have had a nice little ADA claim, on the other hand.
The employee, Rhonda Jones, had a temporary job as a memo clerk. When that job ended, she applied for a regular position in the same job. As part of its usual hiring practices, the company sent her to its contract medical examiner for a post-offer physical exam. That’s when the GINA violation happened: The examiner asked her to fill out a health questionnaire, which asked a bunch of questions about her family medical history. That alone violates the law. Employers (or their contract medical examiners) may not request or require genetic information from applicants or employees. That the employer apparently never acted on the basis of this information doesn’t matter. Requesting it violated GINA. This part of the case is a good reminder to employers that all of this information is now off-limits, period.
But back to the ADA claim: The medical examiner’s actual exam revealed that further evaluation was necessary to find out whether Jones had carpal tunnel syndrome. The examiner told Fabricut of this finding, and Fabricut told Jones to go to her personal physician for testing. Her physician gave her a number of tests and concluded that she didn’t have carpal tunnel. She provided this result to Fabricut, but it didn’t hire her anyway, on the basis of the examiner’s original finding. And it ignored Jones’s request for reconsideration of the decision.
So to review: The employer regarded her as having a disability, although her own physician said she did not. She had already been performing the job for which she applied, and one presumes she was doing fine, as they offered her the position. And, at least based on the facts in the EEOC’s release, the employer made the decision based solely on her disability, without any consideration of reasonable accommodation. Of course, if she had no disability, she wouldn’t be entitled to accommodation. But Fabricut thought she did have a disability — and rejected her on that basis — so it had an obligation to consider possible accommodations. All in all, a pretty strong argument that the employer violated the ADA.