Thursday, January 16, 2014

Founders Pavilion Will Pay $370,000 to Settle EEOC Genetic Information Discrimination Lawsuit

Jan 13, 2014
From: EEOC

NEW YORK - Founders Pavilion, Inc., a former Corning, N.Y. nursing and rehabilitation center, will pay $370,000 to settle a discrimination lawsuit filed by the U.S Equal Employment Opportunity Commission (EEOC), the agency announced today.

The EEOC charged that Founders Pavilion requested family medical history as part of its post-offer, pre-employment medical exams of applicants. The Genetic Information Nondiscrimination Act (GINA), passed by Congress in 2008 and enforced by the EEOC, prevents employers from requesting genetic information or making employment decisions based on genetic information.

The EEOC also alleged that Founders Pavilion fired two employees because they were perceived to be disabled, in violation of the Americans with Disabilities Act (ADA). According to the suit, Founders Pavilion also refused to hire or fired three women because they were pregnant, in violation of the Title VII of the Civil Rights Act of 1964 (Title VII).

The EEOC filed suit in the U.S. District Court for the Western District of N.Y. (EEOC v. Founders Pavilion, Inc., 13-CV-01438), after first attempting to reach a pre-litigation settlement through its conciliation process.

As part of a five-year consent decree resolving the suit, Founders Pavilion will provide a fund of $110,400 for distribution to the 138 individuals who were asked for their genetic information. Founders Pavilion will also pay $259,600 to the five individuals who the EEOC alleged were fired or denied hire in violation of the ADA or Title VII.

After the lawsuit was filed, Founders Pavilion sold its Corning, N.Y. nursing 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 requires Founders Pavilion to post notices and send a memo to employees regarding the lawsuit and consent decree. They will also adopt a new anti-discrimination policy that will be distributed to all employees, provide anti-discrimination training to all employees and provide periodic reports to the EEOC regarding any internal complaints of discrimination.

Pavilion Operations, the buyer of the Corning, N.Y. nursing facility, agreed as a non-party signatory to the consent decree. They will revise their anti-discrimination policies and will include specific references to genetic information discrimination, disability discrimination, and pregnancy discrimination laws and will include a complaint and investigation procedure for employee complaints of discrimination. Pavilion Operations will also provide anti-discrimination training to all of its employees.

"This is our third lawsuit since the enactment of the GINA law and the first one that is systemic," said David Lopez, EEOC General Counsel.  "Employers need to be aware that GINA prohibits requesting family medical history. 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."

"Employers should take heed of this settlement because there are real consequences to asking applicants or employee for their family medical history," said EEOC New York District Director Kevin Berry. "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."

EEOC Trial Attorney Konrad Batog said, "We are pleased that Founders Pavilion worked with us to resolve this lawsuit and that Pavilion Operations signed onto the consent decree, agreeing to provide its employees anti-discrimination training and revise its anti-discrimination policies. 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 (SEP).

"Trust No One..."

This is the famous line of FBI Special Agents Fox Mulder (played by David Duchovny) on the television series "The X-Files."

This is good advice. I live by it.

So how does this apply to you? If your company requires post-offer, pre-employment medical exams of applicants, then chances are that the doctors are taking family medical history. Even if you do not see the family medical history, the doctor may offer an opinion of "fitness for duty," and that decision may be based on family medical history.

You need to ensure that occupational medical centers avoid asking discriminatory questions. You also need to ensure that if an applicant is having the family doctor sign off, that they are excluding protected information.

The problem with doctors:

Another potential problem looms with the doctors themselves. Doctors are best at "TELLING," many even have very good listening skills, but most have very poor teamwork skills, and even worst customer skills. When I go to a doctor, regardless if it is an emergency or annual physical, I am the consumer and the owner of my body, and I have the FINAL SAY!

Most doctors do not want to hear this. For too many years they were the magicians and keepers of secrets. People just blindly followed their advice, and if anything happened, the doctor did all that he could.

Furthermore, the whole process of medical procedures is designed to reenforce the doctor's dominance and absolute power. 

The internet changed all that. It has opened the public's eyes that there are good doctors and there are bad doctors. Patients now have knowledge, understanding, and access to information that they never had before. The way doctors interact with patients is changing. Patients should discuss findings with their doctor AFTER the exam, fully dressed, sitting down with the doctor, on an equal footing.

Patients are encouraged to "fire" their doctor if they do not respect their autonomy. Even laws such as HIPPA and ACA empower patients to take more control over their medical decision making. Doctors are resisting, they now "fire" patients that question them. Soon laws will change to curb this practice as the ACA brings about a shortage of doctors.

Disclaimer: I have an excellant relationship with my current physician. My previous physician was horrible.

I digress... back to GINA. Doctors are ingrained with taking family medical history. Even the AMA touts family medical history:

Gathering a complete and accurate family medical history is extremely important as genetic medicine explains more diseases. In fact, the Surgeon General has named Thanksgiving as Family History Day. Since several family members gather together on Thanksgiving Day, it's a great opportunity to talk to family members and learn more about their health history.  Several tools have been developed to aid both the physician/health care provider and the patient in documenting family history.  The family history tools below have been developed by the AMA and/or other trusted groups.   
Source: AMA website
Here some things that you can do:
  • The EEOC offers guidance on their website here:  
  • Do not blindly trust that the physician's office is not collecting family medical history. Many even require it as a condition of being seen as a patient.
  • Check the requirements and practices of any physicians, occupational medical facilities, etc. to ensure that they are not collecting protected information (under GINA, ADA, etc.), but that they are ensuring patient dignity as well. 
  • Only gather the information needed, evaluate what information you really need.
  • Avoid Third Party information (such as from a work comp TPA). 
  • Be aware of the EEOC's distinction between a "test " and a "medical exam." More info here:
  • Avoid "personality tests" and a "psychological exams." More info here:

Thank you for reading.

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