EEOC, Genetic Information Nondiscrimination Act, U.S. Equal Employment Opportunity Commission (EEOC)

‘Any Family History of Disease?’ EEOC Says Don’t Ask, Don’t Tell.

If employers had any doubt about whether they – or their fitness-for-duty doctors – were allowed to ask about family medical history or genetic information in pre-employment medical tests, the EEOC is putting that doubt to rest with a string of recent enforcement actions.

As one example of this trend, three agricultural employers in California recently agreed to pay $187,500 to settle a discrimination lawsuit filed by the EEOC (the U.S. Equal Employment Opportunity Commission) because they asked job applicants to disclose their medical histories and their family medical histories as part of pre-employment physical exams and health questionnaires.family tree

The EEOC takes the position – which the Update will not dispute here – that such inquiries violate the federal Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act. This is one of the first enforcement actions under GINA, but expect more to follow as the EEOC seeks to eliminate pre-employment inquiries into family medical history and genetic information.

“There are strict guidelines prohibiting inquiries into a job applicant’s medical condition and disability prior to hire,” states the EEOC’s Marla Stern-Knowlton. “Even after hire, employers should avoid asking questions about an applicant’s medical condition if it is not job-related. With respect to genetic information – or family medical history – the law is even more restrictive in that most employers may never ask or acquire genetic information from applicants or employees.”

Takeaway: Although healthcare providers hired to conduct fitness-for-duty medical exams may think it basic and vital to ask about family medical history or genetic conditions, employers should take immediate steps to ensure the process is cleansed of such inquiries and instead focuses on job-related capabilities.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLCFor more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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EEOC, U.S. Equal Employment Opportunity Commission, U.S. Equal Employment Opportunity Commission (EEOC)

EEOC collecting record amounts, but claims down slightly

The U.S. Equal Employment Opportunity Commission (EEOC) announced recently that it recovered a record-high $365.4 million for private-sector employees through its administrative enforcement efforts in fiscal year 2012, and an additional $44.2 million through litigation. In fiscal year 2012, the EEOC processed 99,412 private sector discrimination, harassment and retaliation charges, down slightly from the record of 99,947 set in 2011.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLCFor more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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Social Media, U.S. Equal Employment Opportunity Commission (EEOC)

Recruiting by social media may improperly target younger workers

Employers have one more thing to worry about when they use social media, according to the U.S. Equal Employment Opportunity Commission (EEOC).

Speaking at an EEOC “training institute” in Washington recently, Edward Loughlin, a trial attorney with the agency, noted that users of Facebook (and presumably most other social media) are disproportionately under the age of 40, so if employers recruit applicants through social media, older workers could claim that the practice disproportionately excludes candidates based on age. If social media recruiting does indeed lead to the unbalanced hiring of younger workers, that could be the basis of a “disparate impact claim,” even if the employer has no intention of screening out older workers.

Loughlin said he has not seen such a claim “yet,” and “I’m not trying to alarm people, but this could be a problem,” according to a Daily Labor Report article on his session.

The disparate-impact angle highlights the need for employers to continue to monitor and think about their social media usage and policies to ensure compliance with all laws and with employer policies.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLCFor more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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