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Implicit bias occurs when individuals make judgments about people based on gender, race or other prohibited factors without even realizing they’re doing it.
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The U.S. Equal Employment Opportunity Commission (EEOC) charged Joy Underground Mining LLC based in Pittsburgh with violating federal law for allegedly requiring applicants to provide a family medical history during the hiring process.
The EEOC is suing the company for improperly enquiring into applicants’ family medical histories for cancer, diabetes, epilepsy, heart disease and tuberculosis during a post-offer medical examination, in violation of the Genetic Information Nondiscrimination Act (GINA).
For employers with more than 15 employees, GINA protects individuals against employment discrimination on the basis of genetic information, including family medical history. GINA also prohibits employers from requesting, requiring or purchasing genetic information about applicants or employees, except in very narrow circumstances.
“The EEOC contends that this practice violates GINA because it deprives applicants from employment or otherwise adversely affects their status as applicants for employment because of their genetic information,” said Christopher G. Gegwich, a partner in Nixon Peabody’s labor and employment group, based in New York City. There are some exceptions to the general prohibition against acquiring genetic information in the employment context, but they are extremely limited, he added.
Those exceptions include:
GINA also prohibits harassment of an employee or applicant because of his or her genetic information, as well as retaliation against an employee or applicant for filing a GINA-based charge of discrimination or participating in a genetic information discrimination investigation or lawsuit.
In short, any employment action based on or taken due to reliance on genetic information, even an action that might be intended to benefit the employee, will violate GINA, according to the EEOC. For example, an employer cannot reassign an employee to another job because the employer believes the current job is too stressful based on the employee’s family medical history of heart disease.
Roy Maurer is an online editor/manager for SHRM. Follow him
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