Mandatory Health History Form Violated ADA, GINA

By Roy Maurer Mar 30, 2016

A farm products company violated federal laws by requiring job applicants to fill out a health history form before being considered for work, the U.S. Equal Employment Opportunity Commission (EEOC) said.

The agency sued Grisham Farm Products of Mountain Grove, Mo., March 22 in the U.S. District Court for the Western District of Missouri, Southern Division, alleging that the company violated Title I of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

The three-page health history pre-employment form “requested information that could cause an applicant to identify himself or herself as a person with a disability,” which violates the ADA, the agency said. Requiring applicants to fill out the form also violated GINA, which prohibits employers from requesting or requiring genetic information, including medical histories regarding applicants or their family members, except in limited circumstances allowed by statute.

The EEOC also alleged Grisham Farm Products did not maintain or retain employment records and applications for employment, as required by law.

According to the agency’s suit, Phillip Sullivan learned Grisham Farm was hiring in the summer of 2014 and decided to seek a warehouse job. He downloaded Grisham’s online application in early August and began to answer the first question on the health form, but he stopped, believing he did not have to give his medical history, and phoned the company. A company representative told him his application would not be accepted if he did not complete the health form, according to the suit. Sullivan refused to complete the form, and subsequently filed a discrimination charge with the agency. An attempt to broker a conciliation agreement with the company was rebuffed, according to the EEOC.

“Prior to the enactment of the ADA and GINA, employers often included questions in their written employment applications seeking information regarding the applicant’s medical conditions and personal or family medical history,” said Christopher G. Gegwich, an attorney with Nixon Peabody, based in the firm’s New York City and Long Island, N.Y., offices.

These inquiries often lead to applicants with medical conditions or disabilities being disqualified without any analysis or consideration of whether the applicants could actually perform the jobs at issue, with or without reasonable accommodations, he said.

“In an effort to combat such exclusion, under the ADA and GINA, employers are generally prohibited from asking a job applicant if he or she has a ‘disability,’ nor are employers initially permitted to ask questions regarding a candidate’s physical or mental conditions and personal or family medical history,” Gegwich said. “Pursuant to the ADA, after an employer makes an offer of employment, however, it may condition the job offer on the successful passing of a medical examination or make other medical-related inquiries, so long that all applicants are treated the same way and the examinations or questions are job-related and consistent with business necessity.”

However, under GINA, employers are never permitted to take an employee’s or applicant’s genetic information or family medical history into consideration in connection with an employment-related decision, he said.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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