Companies all across the country use criminal background checks and pre-employment physicals as a part of the hiring process. How these screening are conducted may concern employment law attorneys in some circumstances. Companies should not have carte blanche to use these processes in ways that can have a disparate impact on groups of people. Laws are in place that may give some workers relief when an employer crosses the line in its pre-employment screenings.
Should an employer be able to base its hiring decisions based upon a prospective employee’s family medical history?
A recent lawsuit that had been filed against an upstate New York company says that under federal law the answer is no. The Equal Employment Opportunity Commission claims that the lawsuit was the first that alleged a systemic violation of the Genetic Information Nondiscrimination Act, which became law in 2008. Other non-systemic lawsuits have also arisen under the law.
The law prohibits companies from using genetic information of individual workers when making employment decisions, including at the hiring stage. Like other workplace discrimination laws, the GINA prohibits employers from using genetic information throughout the employment relationship, including in making decisions related to promotions, demotions and firing.
The recent lawsuit in New York alleged that Founders Pavilion Inc. violated federal law by having a policy of asking for medical histories during pre-employment medical examinations. Founders Pavilion was a nursing and rehabilitation center, which was sold after the lawsuit was filed.
The company has agreed to settle the lawsuit for a six-figure sum and other relief. The lawsuit alleged other violations, including disability and pregnancy discrimination issues related to other individual hiring and firing decisions related to several people.
Source: Bloomberg Law, “Nursing Center Settles Charges by EEOC for Asking About Family Medical History,” John Herzfeld, Jan. 13, 2014