EEOC Lawsuit Over Medical Exams Highlights Employer Duty to Comply With GINA and ADA

A lawsuit filed by the U. S. Equal Employment Opportunity Commission (EEOC) against a national retailer in Birmingham, Alabama, should serve as a reminder to employers about the federal laws applicable to post-offer medical examinations. When they conduct post-offer physical exams, employers must ensure that the health information obtained from job candidates, and how it is used for employment decisions, complies with both the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act of 2008 (GINA).

How post-offer medical exams comply with the ADA:

The ADA permits employers to require a physical exam of a job candidate after a contingent offer of employment has been made, as long as:

• All other employees entering in the same job category are also required to submit to an exam.
• The candidate’s health information is kept confidential.
• The results of the exam are not used to discriminate against persons covered by the ADA.

An employer may withdraw a contingent offer based on the results of a physical exam, but only if the reason for that decision is job-related, consistent with business necessity, and there is no reasonable accommodation that the employer can offer to permit the person to perform the essential functions of the job or the needed accommodation would cause the employer an undue hardship.

GINA’s restricts the collection and use of genetic information from a post-offer medical exam:

GINA has been in effect since 2009, but it is sometimes overlooked by employers among the various federal employment non-discrimination laws. 

Under Title II of GINA, it is illegal for covered employers (generally those with 15 or more employees) to discriminate against employees or applicants because of genetic information. GINA also prohibits the use of genetic information in making employment decisions and restricts employers from requesting, requiring, or purchasing genetic information. It also strictly limits the disclosure of employee’s genetic information and requires it be treated as a confidential medical record. Employees are also protected from retaliation for opposing any practice prohibited by GINA.

Under GINA, “genetic information” includes information about the:

• Individual’s genetic tests (such as DNA testing or tests to assess disease risk)
• Genetic tests of their family members
• Manifestation of a disease or disorder in the individual’s family members (i.e., the individual’s “family health history”)
• Request for or receipt of genetic services, or participation in clinical research, by the individual or a family member

The EEOC’s recent lawsuit over alleged ADA and GINA violations by a national retailer conducting post-offer medical exams:

In 2017, the EEOC filed a lawsuit in the U.S. District Court for the Northern District of Alabama, following an investigation by its Birmingham District office, against a national retailer alleging violations of GINA and the ADA. The EEOC alleged that the retailer, after making job offers to applicants to work at its Bessemer, Alabama, distribution center, then required those applicants to pass a post-offer medical exam. The EEOC alleged, however, that the retailer required its job candidates to disclose in that exam the past and present medical conditions of their family members, such as whether they had ever had cancer, diabetes and heart disease. 

The EEOC also alleged that the retailer used certain qualification criteria to screen out qualified individuals with ADA-covered disabilities. As examples, the EEOC claimed the retailer rescinded job offers to applicants whose blood pressure exceeded 160/100 or who had less than 20/50 vision in one eye, even when those impairments did not prevent the applicant from safely performing the job. 

The EEOC sued the retailer on behalf of a class of 498 applicants who were required to divulge family medical history during the hiring process and on behalf of another class of qualified applicants whose job offers were rescinded based on their impairments. On Oct. 19, 2023, the EEOC announced that it had reached a settlement with the defendant retailer to resolve the lawsuit.

As part of the settlement terms, the retailer agreed to pay $1 million and, among other non-monetary relief, bar their medical examiners from requesting family medical history from applicants during post-offer physicals. In announcing the settlement, the EEOC noted that an employer is prohibited under GINA from soliciting the family medical history of an applicant, regardless of whether the information is used to deny employment.

What employers can learn from the EEOC lawsuit:

Employers should review their post-offer medical exam procedure, including any medical questionnaire they require candidates to complete, to ensure that there are no questions that may violate GINA. Employers should also ensure that physicians conducting these exams, as well as ADA-permitted “fitness-for-duty” tests, do not violate GINA in doing so. Employers should communicate to physicians, using the “safe harbor” language approved by GINA, that prohibited genetic information is not being requested and should not be provided to the employer. Finally, employers should ensure they are complying with GINA and the ADA in how they use information collected in post-employment exams to make hiring decisions.

Please contact Michael E. Turner or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice or guidance.