Recently, the Equal Employment Opportunity Commission has increased litigation against employers who require that applicants provide health history information. The EEOC has taken the position that in addition to a per se violation of the Americans with Disabilities Act pre-employment health screening is also a violation of GINA, the Genetic Information Nondiscrimination Act of 2008. Here, the EEOC filed a lawsuit in March of 2016 against Mountain Grove, Missouris Grisham Farm Products, alleging that they required applicants to fill out a three page health history in order to be considered for employment. The lawsuit came after pre-litigation conciliation efforts were unsuccessful. It sought monetary compensation and a court order instructing Grisham to discontinue its current pre-employment screening practices.
The lawsuit alleged that a retired police officer, Philip Sullivan, inquired about an opening with Grisham and was told that he would have to fill out Grishams three page health history form in order to be considered for a position. The EEOC took the position because the health information form could cause an applicant to identify him or herself as an individual with a disability, the requirement was a per se violation of the ADA. GINA similarly prohibits employers from requiring applicants to divulge genetic information, including medical histories, about themselves or their families except in limited circumstances as required by other laws. Lastly the EEOC had alleged that Grisham had failed to comply with record retention requirements with regards to both medical histories and employment applications.
On June 8, 2016 federal Judge Douglas Harpool, of the Western District of Missouri, Southern Division, agreed with the EEOC, granting Judgment on both counts. In doing so Judge Harpool found that Grisham had violated both the ADA and GINA. That finding was surprising because in this case, as in many, demonstrating a violation of the ADAs pre-employment screening processes was likely to also show a violation of GINA, and vice versa. He ordered that Grisham pay Mr. Sullivan $10,000, and that it discontinue its pre-employment screening. The Judgment was more surprising for how quickly it was handed down than for its eventual outcome. This serves to reinforce the danger for employers of having application practices that might violate these and other discrimination laws. Violations are extremely difficult, even impossible, to contest because all the evidence that the EEOC needs to prevail might be found in the employers own application. For these reasons, application processes and the documents used to screen applicants are extremely important, and an employer should pay particular attention to insure that they are consistent with all current discrimination laws.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including discrimination defense and legal compliance diligence, for almost sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.