Part 1: Prefield Screening - a statute with a cute little name
GINA is 7 years old now, but she’s not a sweet little girl. The acronym stands for the Genetic Information Nondiscrimination Act, passed in 2008, and it is intended to prevent employers from acquiring genetic information about employees and/or discriminating against them on that basis, particularly using that information in the hiring process. Sounds like a no-brainer. As we acquire more genetic information about ourselves, we don’t want it used against us.
Until recently, no one has known quite what GINA implied, and there has been little to no litigation for GINA. Brace yourselves. The EEOC just filed two GINA cases. The first GINA lawsuit ever by the EEOC is against Fabricut, which settled. Fabricut paid $50,000 for refusing to hire a woman because of carpal tunnel syndrome (ADA claim) and because it asked for her family medical history in a post-offer medical examination (GINA claim). The second is a class action lawsuit against The Founders Pavilion for asking for prohibited information during the hiring process. Founders conducted post-offer, pre-employment medical exams of applicants—and asked for family medical history. The EEOC is okay with post-offer, pre-employment exams, but not with asking for family medical history, which is a form of prohibited genetic information.
Many if not most missions organizations do a thorough pre-field medical screening. The EEOC states that GINA covers both an individual’s (or their family’s) genetic tests and family medical history. An employer may need to ask for genetic information in some limited circumstances (such as information needed for the Family Medical Leave Act), but may not use genetic information (including family medical history) for hiring.
The pre-employment medical examination after making a job offer, or the furlough medical examination, may not solicit family medical history for the employer. The employer must tell health care providers not to collect such information. The statute appears to permit gathering the information if it is kept between the employee and the doctor and is not given to the employer. The employer should also warn the employee not to provide any “genetic information.”
GINA probably applies to most mission organizations. There is no religious exemption, though the ministerial exception might prevent a GINA lawsuit. The safer approach is to comply.
For more information, see this Q&A from the USEEOC. You may wish to talk with an employment law attorney about whether you comply with this and other parts of GINA.
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