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Nursing Center Settles Charges by EEOC For Asking About Family Medical History

Wednesday, January 15, 2014
By John Herzfeld

Jan. 13 --An upstate New York nursing and rehabilitation center has agreed to settle claims that it illegally asked applicants for family medical history as part of a pre-employment medical exam, the Equal Employment Opportunity Commission announced Jan. 13 (EEOC v. Founders Pavilion Inc., W.D.N.Y., No. 13-cv-6250, settlement approved 1/9/14).

This is the first systemic case under the Genetic Information Nondiscrimination Act (GINA), enacted in 2008, the EEOC said in a statement. Under a five-year consent decree approved Jan. 9 by Judge Charles Siragusa of the U.S. District Court for the Western District of New York, Founders Pavilion Inc. of Corning, N.Y., will pay $110,400 for the fund to distribute to 138 claimants. Each claimant is due $800.

In a 2013 lawsuit, the EEOC charged the nursing center with violating the discrimination provisions of GINA by seeking the family medical history data in post-offer, pre-employment exams.

Enforced by the EEOC, GINA prevents employers from requesting genetic information or making employment decisions based on genetic information, the commission said.

The lawsuit also charged the nursing center with firing two employees because they were perceived to be disabled, in violation of the Americans with Disabilities Act, and alleged that it had fired or refused to hire three women because they were pregnant, in violation of Title VII of the Civil Rights Act of 1964.

In addition to the payment for the GINA claims fund, Founders Pavilion agreed to pay $259,600 to settle the five ADA and Title VII claims. The total settlement amount was $370,000.

In settling, Founders Pavilion denied the allegations.

Center Sold After Lawsuit
After the lawsuit's filing, the EEOC said, Founders Pavilion sold the Corning facility to Pavilion Operations LLC d/b/a Corning Center for Rehabilitation and Healthcare and ceased operating any business.

If Founders Pavilion resumes conducting business, the consent decree would require it to post notices, send a memo to employees regarding the lawsuit and consent decree, and adopt other anti-discrimination policy measures.

Pavilion Operations agreed as a nonparty signatory to the consent decree to revise its anti-discrimination policies, including specific references to genetic information discrimination, disability discrimination, and pregnancy discrimination laws, the EEOC said.

The buyer must also offer a complaint and investigation procedure for employee discrimination grievances and provide antidiscrimination training to all of its employees, the commission added.

EEOC: First Systemic GINA Case
EEOC General Counsel David Lopez, in a statement, said the case was the third GINA lawsuit since the law's enactment and the first to provide systemic relief.

“Employers need to be aware that GINA prohibits requesting family medical history,” Lopez said. “When illegal questions are required as part of the hiring process, the EEOC will be vigilant in ensuring that no one is denied employment opportunities on a prohibited basis.”

EEOC New York District Director Kevin Berry added,“Employers should take heed of this settlement because there are real consequences to asking applicants or employee for their family medical history. The EEOC will pursue these cases to the fullest extent of the law to ensure that such genetic inquiries are never made of applicants or employees.”

Giving credit to the nursing center for working to reach agreement and the new owner for signing on to anti-discrimination provisions, EEOC trial attorney Konrad Batog said, “The resolution of this lawsuit should serve as a message and educate employers about genetic information discrimination and help ensure compliance with the laws that the EEOC enforces.”

Addressing emerging and developing issues in equal employment law, which includes genetic discrimination, is one of the six national priorities identified by the EEOC's Strategic Enforcement Plan, the commission noted.

A representative of Founders Pavilion didn't respond to a request for comment on the settlement Jan. 13.

To contact the reporter on this story: John Herzfeld in New York at jherzfeld@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com


Text of the settlement is available at http://www.bloomberglaw.com/public/document/Equal_Employment_Opportunity_Commission_v_Founders_Pavilion_Inc_D/1.

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