Media Center


EEOC and Genetic Discrimination: Employers Take Note

oswaldcompanies June 18, 2013

' width=While it has received little press to this point, it is important to note that the Strategic Enforcement Plan that the U.S. Equal Opportunity Commission (EEOC) approved on December 17, 2012, will have an effect on how you conduct business.

Why is this important news today? Results of this ‘plan’ can be seen in two recent prosecutions of employers related to GINA (Genetic Information Nondiscrimination Act of 2008) discrimination; one employer for not hiring a worker with perceived carpal tunnel syndrome, and another for her pregnancy.

In the past several years, the community of wellness professionals has been forced to make major changes to health risk assessments, along with the review of historical medical conditions/family history, over and above the requirements of HIPPA and release of Protected Health Information (PHI).

A Growing Awareness

As stated in the recent BenefitsPro article, while this law has only brought forth nearly 1,000 complaints since it was enacted in 2008, the number of file complaints have increased each year since the inception.

It’s also interesting to note that many complaints being investigated by the EEOC actually originated as a violation of the ADA, and then during the investigation, it was determined that these people were asked questions that violated GINA.

Genetic testing, although pricey, is now more widely available and getting media attention. Consider the publicity surrounding Angelina Jolie’s decision to undergo a double mastectomy after a genetic test revealed that she carried a mutation of the BRCA1 gene, which dramatically increases the risk of breast and ovarian cancer.

From the Employer Perspective

As an employer, it is important to take note that specific to any pre-employment medical tests for applicants – or tests required anytime for employees in the employment process – that medical practitioners should be advised not to ask applicants and employees about their family medical histories.

Additionally, if the provider learns directly or inadvertently about someone’s medical history, any of that information should be excluded from any report sent to the employer.

Learn more on, view a link to the to the US EEOC Strategic Enforcement Plan for FY 2013-16 and view Q&A from the EEOC on GINA.

Contact me to discuss this issue further.