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EEOC Genetic Bias Charges Spiked While Pandemic Raged

By Amanda Ottaway · 2021-03-09 19:52:21 -0500

U.S. Equal Employment Opportunity Commission charges invoking the Genetic Information Nondiscrimination Act more than doubled from fiscal year 2019 to 2020, piquing the interest of employment experts who said the uptick could have stemmed from the COVID-19 pandemic bringing more worker health discussions to the office.

The 440 GINA charges the agency received in fiscal year 2020 marked the most claims the EEOC has ever gotten under that 2008 statute, marking a sharp rise from the 209 GINA charges the agency got in 2019.

Title II of GINA bars discrimination at work based on a worker or applicant's genetic information. The law also covers information about an employee's family medical history, according to the EEOC.

While attorneys said they could not be sure what drove the spike in GINA charges last fiscal year, which stretched from October 2019 through September 2020, several pointed to the pandemic as one plausible culprit.

"I think it probably is related to COVID," said Elizabeth Pendo, a specialist in disability law and bioethics and law professor at Saint Louis University.

"I think employers are directly collecting a really increased volume of health information through screening and testing for COVID, but also through requests for accommodations under the Americans with Disabilities Act," she said.

Many of the disclosures have involved discussion of underlying health conditions that put people at greater risk for severe illness from COVID-19, she added.

Some of those conditions, such as certain cancers, obesity, sickle-cell anemia and Down syndrome, could have a link to genetic information, Pendo said.

Ken Willner, vice chair of Paul Hastings LLP's employment law department, also said the COVID-19 pandemic seems like a driving force behind the rise in GINA charges.

"That's the one thing that strikes me as being different last year than the year before," he said of the pandemic.

The EEOC logged 201 GINA charges in fiscal year 2010, according to its statistics, and as many as 333 in 2013 and 2014. But charges were in the 200s every other year until 2020. The law took effect in November 2009, according to the EEOC.

The increase last year could be "connected with medical examinations that have been associated with COVID-19, or COVID-19 prevention — people being asked questions about family medical history in connection with medical issues at work, or in connection with getting an exam or even a vaccine at work," Willner hypothesized.

Willner also noted that GINA charges are still quite rare overall. The EEOC said it received 67,448 total workplace bias charges in 2020, with much more common categories being gender, race and disability discrimination.

Epstein Becker Green member Adam Forman said the spike could also be due in part to employees not fully understanding GINA's scope as it relates to questions about their health during the pandemic. Employers are allowed to ask screening questions, such as whether their employees have symptoms of COVID-19, have been tested for the virus or tested positive, he said.

"Because the EEOC said those were lawful questions, it wouldn't surprise me if employees didn't know that," Forman said.

Employers should already know how to handle potentially sensitive employee health information, Paul Hastings' Willner said.

The EEOC specifically instructs employers to tell their providers not to gather workers' genetic information during work-related appointments.

Willner warned that family history questions could come up in the employee vaccination process as well, urging caution but saying he doesn't foresee it being a big headache for employers.

"People are getting the vaccine, something that's beneficial to them — it would be difficult to see how somebody is harmed in that context," he said.

The EEOC itself has said that vaccinating workers or mandating they show they've gotten the shot doesn't run afoul of GINA's Title II "because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of 'genetic information' as defined by the statute."

Though there was some question of whether the mRNA vaccines for COVID-19 — which use genetic code — "modify a recipient's genetic makeup," the EEOC cited the Centers for Disease Control and Prevention, which said those inoculations "do not interact with our DNA in any way."

Both Saint Louis University's Pendo and Paul Hastings' Willner said another possible factor driving the uptick is an increased awareness among the public of the overlap between health and employment.

"COVID-19 and pandemic safety measures in the workplace have definitely raised the profile of the protections of the Americans with Disabilities Act and also to some extent GINA, and the level of conversations around accommodations and being able to work from home has dramatically increased," said Pendo.

For example, a worker with high blood pressure might never have thought about workplace accommodations before. But given that it's a risk factor for severe COVID-19, "they might think of it now," she said.

A spokesperson for the EEOC did not immediately comment Tuesday.

--Editing by Haylee Pearl.

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