Employment Practices: EEOC Files First GINA Class Action Suit Against Healthcare Facility
The U.S. Equal Employment Opportunity Commission (EEOC), as part of its priorities under its Strategic Enforcement Plan (“SEP”), filed a GINA class action suit in May against Founders Pavilion, Inc., a Corning, New York nursing home and rehabilitation center. Under Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts employers and other entities covered by Title II from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.
The EEOC alleges that the Founders Pavilion conducted post-offer, pre-employment medical exams of applicants, and annual exams if the person was hired, and requested family medical history.
“GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law. Here, not only did the employer ask for prohibited information, it also discriminated against individuals with disabilities or perceived disabilities as well as pregnant women,” said Elizabeth Grossman, regional attorney of New York’s EEOC.
According to the EEOC definition, “genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. Genetic information also includes an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual, and the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.”
Healthcare facilities among others have also been a target of the EEOC under the American Disabilities Act (ADA) for disability discrimination.
With employee lawsuits on the rise and a proactive stance by the EEOC, it’s critical that nursing homes, assisted living facilities, independent living facilities and other healthcare facilities reinforce best employment practices so as not to find themselves in violation of the law, even inadvertently. Additionally, securing proper insurance coverage is essential to protecting the facility and its management/ executives against loss (damages and defense costs) arising out of employment practice disputes. Employment practices insurance provides coverage for claims arising from alleged discrimination, sexual harassment, wrongful termination and wrongful discipline, among other important employee-related issues. In addition to being available as a standalone coverage, employment practices liability can be included with Directors & Officers (D&O) insurance coverage.
At Caitlin-Morgan, we specialize in the insurance needs of nursing home & assisted living facilities. Give us a call today at 877.226.1027.