GINA, the Genetic Information Nondiscrimination Act, made few waves when it went into effect in 2009. At first blush, a prohibition on employer use of an applicant's or employee's "genetic information" seemed like common sense. Few, if any, employers made a practice of asking for "genetic information," and GINA charges accounted for only 0.3% of the total charges filed in 2012 with the EEOC.
But recent litigation brought by the EEOC reveals that GINA has an unexpected bite. In early May 2013, the EEOC filed its first lawsuit alleging GINA violations against Fabricut, Inc., an Oklahoma-based distributor of decorative fabrics. The EEOC accused the employer of illegally requesting family medical history, which GINA considers "genetic" information. The employer explained that the family medical information was gathered by a third-party medical provider in the ordinary course of a medical examination and was not used in hiring decisions, but the EEOC filed suit anyway. Fabricut decided not to engage in expensive litigation over the point. Instead, it settled the dispute by paying $50,000 and providing anti-discrimination training to its employees.
We can learn from Fabricut's experience. A request for family medical history – even if made by an independent third party medical provider performing an employment related medical exam– violates GINA and can subject the employer requesting the medical examination to liability. Controlling what health care providers ask in medical exams has historically not been on most HR managers' radar screens. Now it should be.
Remember: If you send an applicant or employee for a medical examination, instruct the health care provider not to report family medical history. The relevant inquiry in an employment-related medical exam is not what the employee's health may be in the future, but rather what the employee's present ability is to perform the essential functions of the job.
Criminal Background Checking
EEOC has also filed lawsuits against employers over their use of criminal background checks, which many employers consider to be a Human Resources "best practice." It costs employers both money and time to take the extra step of conducting a background check before bringing an employee onboard. But many employers tolerate the costs in exchange for the peace of mind that comes from having this opportunity to evaluate an individual's character. We are taught: the best predictor of future behavior is past behavior. Indeed, in some situations the law even requires that a criminal background check be done. Why, then, has the EEOC taken aim at this commonsense practice in recent lawsuits against BMW and Dollar General? (See: www.eeoc.gov/eeoc/newsroom/release/6-11-13.cfm.)
First, the EEOC has not said that an employer cannot or should not do criminal background checks. The rub is in how the employer uses the information it receives. If an employer conducts checks and applies the results consistently to everyone applying for a particular position regardless of race, sex, age or other protected class, disparate treatment (intentional) discrimination is not the issue. The problem is "unintentional" adverse impact, particularly on people of color. The EEOC says that relying on either arrests or convictions adversely impacts people of color.
Whenever a neutral selection criterion adversely impacts a protected class, Title VII requires that employers prove that use of this information is "job related" and "consistent with business necessity." In short-hand terms, an employer using this information should be prepared to prove that a candidate's criminal background is predictive of successful performance in the particular job for which he or she is being considered.
At a minimum, the EEOC's position means that an employer who uses conviction information should make individualized decisions after considering the circumstances resulting in the conviction, the nature of the criminal offense, the age of the conviction, and the essential functions of the job. Don't just rely on the background report. Talk to the candidate and find out the details. Make your decision based on what you learn in your conversation, not just on the cold hard fact of the conviction.
The EEOC's message to employers is not to default to using criminal conviction information in an overly broad way as an early screening tool. Instead, request the information only when it is relevant to the particular job, apply the information carefully to individual situations, and make informed judgments.
This information should not be interpreted as legal advice with respect to specific situations. Article originally appeared Greensboro Business Journal. Reproduced with permission.