Don Stait, The Daily Record Newswire
Employers in 2013 paid $372.1 million — the most ever in one year — to resolve discrimination and retaliation claims through mediation, conciliation and other administrative enforcement efforts. Employers paid $39 million more in monetary relief through lawsuits. Although the number of claims is the lowest in four years, the dollar amount paid by employers set a new record.
These figures come from the U.S. Equal Employment Opportunity Commission’s Performance and Accountability Report released recently for the 2013 fiscal year. The report, which was a month late due to the government shutdown, lists the number and types of discrimination charges as well as the resolution and dollar amounts recovered. The EEOC’s major efforts for 2013 were:
• A total of 97,252 charges were resolved in 2013.
• The EEOC litigated 209 lawsuits obtaining $39 million in monetary relief. Of these resolutions, 135 pertained to race, color, national origin, sex or religion, 59 were disability discrimination claims, 16 contained age discrimination claims, four contained equal pay claims, and one invoked the Genetic Information Nondiscrimination Act (GINA).
• Thirteen cases went to trial in 2013. Eleven of these trials were heard before juries. The EEOC was victorious in nine of the 11 jury trials, resolved one by consent decree, and lost one trial before a judge.
• A total of 131 lawsuits were filed in 2013. Of these lawsuits, 89 were individual actions; 21 were nonsystemic class suits, and 21 were systemic suits. Systemic discrimination involves a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area. Of these new cases, 78 contained race, color, national origin, sex or religion claims, 51 contained disability discrimination claims, seven contained age discrimination claims, five contained equal pay claims, and three contained GINA claims. By the end of the 2013, 231 cases remained on the EEOC’s active docket.
• The agency filed 21 systemic lawsuits in 2013.
• The EEOC resolved 29 systemic cases – seven included at least 50 alleged victims of discrimination and 14 included at least 20 alleged victims of discrimination.
• EEOC field offices completed 300 systemic investigations that resulted in 63 settlements or conciliation agreements, and $40 million in awards for more than 8,300 individuals.
• The EEOC issued 106 reasonable cause determinations in systemic investigations during 2013.
The full Performance and Accountability Report for 2013 is at www.eeoc.gov/eeoc/plan/ upload/2013par.pdf.
Beware of GINA’s hidden pitfalls
Most employers know that GINA added genetic information to the ever-expanding list of characteristics that cannot lawfully form the basis for an employment decision. However, in reality, GINA is much more. It is a privacy statute that strictly regulates employers’ collection, use, safeguarding and disclosure of “genetic information.”
Critical to understanding GINA’s broad sweep beyond genetic tests is the statute’s definition of the term “genetic information." That term includes not just genetic test results but also “the manifestation of a disease or disorder in a family member." Notably, this definition is not limited to “genetic” diseases or disorders; any disease or disorder satisfies the definition of “genetic information.”
Further expanding this definition’s scope, GINA defines “family member” to include: a dependent, whether born to the individual or adopted; a relative to the fourth degree of the individual; and a relative to the fourth degree of the individual’s dependents.
How does this affect employers? Under GINA, it is unlawful for an employer to “request, require or purchase genetic information” of an employee or the employee’s family members. In both the first single claimant complaint filed under GINA and the first GINA class action, it was the mere alleged collection of family medical history (i.e., the privacy violation) that triggered the lawsuit and not any use of that information.
The EEOC currently identifies GINA as one of six areas where it will focus its enforcement efforts in 2014. In addition, the number of charges filed with the EEOC alleging violations of GINA, while still small, increased by nearly 50 percent between 2010 and 2012.
Employer efforts should consider:
• Eliminating direct requests for family medical history from employees and applicants;
• Including the following “safe harbor” language in any HIPAA authorization provided to a medical provider for release of an employee’s medical information:
‘The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services;’
• Training recruiters and other employees who may access applicants’ or employees’ social media content not to record genetic information or rely on it for any employment decision. This includes information about applicants’ or employees’ family members, descendants and ancestors going back four generations.
While these steps should help mitigate the most significant risks arising from GINA, employers should conduct a comprehensive review of their compliance with this statute as the enforcement environment becomes less forgiving.
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Don Stait is Special Counsel in Littler Mendelson’s Portland office. Contact him at 503-889-8874 or dstait@littler.com.
