The Genetic Information Nondiscrimination Act of 2008 (GINA) is a federal law making it illegal for insurers and employers to acquire and to use genetic information in certain contexts. Specifically, Title II of GINA prohibits employers with more than 15 employees, employment agencies, labor organizations, and joint labor-management training and apprenticeship program committees from using genetic information when making employment decisions (e.g. hiring, firing, promotions, placement, compensation, privileges, seniority, etc).

The employment discrimination provisions took effect on November 21, 2009, with an air of uncertainty, as the Final Rules implementing Title II of GINA were not issued by the Equal Employment Opportunity Commission (EEOC) until a year later (See 75 Fed Reg 68912-68939 [pdf], issued November 9, 2010) and did not take effect until January 10, 2011. (See previous GLR coverage of GINA Title II here and of GINA generally here).

EEOC v. Nestle Prepared Foods

A recent case reminds us of the evidentiary hurdles generally present in employment discrimination litigation that GINA did not address. In June of 2010, Michael Peel filed a charge of genetic discrimination in employment with the EEOC against his former employer, Nestle Prepared Foods. According to the opinion and order issued on May 23, 2012, by Senior District Judge Hood in EEOC v. Nestle Prepared Foods, 2012 WL 1888130 (E.D. Kentucky, 2012), Mr. Peel’s charge of discrimination was based on “retaliation” and “genetic information.”¹ The charge alleged that during his employment with Nestle Prepared Foods, Mr. Peel was required to complete a “fitness-for-duty” medical examination, that the medical examination included collection of his family medical history, and that his employer terminated his employment within one month of the medical examination.

GINA defines “genetic information” broadly to include family medical history. Employers and other covered entities may still require employees to undergo medical examinations for job fitness; however, family medical history is not to be involved in such employment medical exams. As Judge Hood’s order notes, Mr. Peel did not elaborate on his allegation of “genetic discrimination” in his complaint to the EEOC, but it subsequently became “clear that that portion of the charge relates to Dr. McLaughlin’s [the private physician to whom Mr. Peel was sent by Nestle] acquisition of Peel’s family medical history.”

During the administrative handling of Mr. Peel’s charge of discrimination under GINA Title II, the EEOC issued a subpoena directing Nestle to disclose company documents showing employment decisions involving any employee or other person who, at Nestle’s request, was subjected to a medical examination from approximately six months before the alleged incident involving Mr. Peel to the present day, including hiring and firing decisions with respect to such individuals. Nestle refused to produce the evidence, so the EEOC then petitioned the Eastern District Court of Kentucky to enforce the subpoena.

Senior District Judge Hood rejected the EEOC’s petition to enforce the subpoena, holding that the information that the EEOC sought to obtain was “irrelevant to the charge being investigated.”

In previous proceedings before a Magistrate Judge, which had ruled in favor of the EEOC and ordered Nestle to comply with the EEOC’s subpoena, the EEOC had argued that a broad review of Nestle’s practices with respect to medical examinations for current and potential employees was relevant to see if the alleged GINA violation in Mr. Peel’s case might also have occurred with respect to other Nestle employees or potential employees.

In essence, the EEOC, through its investigation of Mr. Peel’s claim of individual disparate treatment, was interested in simultaneously exploring whether there was evidence of systematic disparate treatment. While acknowledging that “it is well established that the EEOC has broad access to evidence that is relevant to a charge being investigated,” and that the relevance standard is to be “construed expansively,” Judge Hood was unprepared to stretch the meaning of “relevant” to the degree requested by EEOC. Or, as Judge Hood put it, to grant the EEOC’s subpoena “would eviscerate the relevance requirement and condone fishing expeditions” (citing EEOC v. K-Mart Corp., 694 F.2d 1055, 1066). Judge Hood explained further that, “while the Court recognizes that it is important for the EEOC to have the ability to investigate possible patterns of discriminatory action, this does not mean that every charge of discrimination justifies an investigation of the employer’s facility-wide employment practices” (citing EEOC v. Burlington N. Santa Fe R.R., 669 F.3d 1154, 1157-1158).

The Burden of Enforcing GINA

As one of us pointed out previously,² cases with direct evidence of discrimination are unusual, and most alleged victims have little choice but to try to prove individual disparate treatment claims using circumstantial evidence to show either a pretext or mixed-motive for the employment decision at issue. While GINA expanded the scope of federally prohibited discrimination to include the use of genetic information by certain employers, including family history, GINA did not address the burden shifting involved in establishing that discrimination has actually occurred (See McDonnell Douglas v. Green, 411 U.S. 792 (1973) and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), respectively) or alleviate other evidentiary burdens of employment discrimination claims.

EEOC v. Nestle Prepared Foods underscores that even the EEOC – the agency charged with investigating and enforcing GINA’s Title II proscriptions – is not possessed with unrestrained investigatory tools. The opinion, perhaps lending credence to the notion that GINA is more bark than bite, suggests that the EEOC may need to show allegations of discrimination from multiple victims before courts will compel employers, particularly large corporate employers like Nestle, to produce corporate records that would facilitate a broad investigation of potential systematic disparate treatment. It seems likely that the EEOC will need to pursue other lines of inquiry to substantiate such claims (such as interviewing coworkers identified or known by the victim filing the charge of discrimination) and have, as this court indicated is required, “articulable circumstances that suggest the existence of violations beyond those specified” in the original charge before courts force employers to throw open their file cabinets in the name of investigating and enforcing GINA.

More broadly, the Nestle case is a reminder that GINA remains a relatively new piece of legislation. The most recent enforcement statistics published by the EEOC, which cover fiscal years 2010-2011, show an extremely modest number of charges of discrimination received by the Commission allege genetic discrimination (201 in 2010, 245 in 2011). Just how modest those numbers are is perhaps more easily appreciated when one considers that the EEOC received nearly 100,000 total charges of discrimination in each of those two years and, as the Nestle case highlights, adding a charge of genetic discrimination to an EEOC complaint is as simple as checking the box on a standard EEOC-provided form.³

Raising awareness and, ultimately, appropriate enforcement of GINA will clearly take both time and a concerted effort by the EEOC and other federal and state authorities. A major part of that effort will include continuing to educate individuals, employers and, yes, even courts about GINA’s requirements and the challenges of identifying and preventing discrimination in the genetic age.

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¹ The charge also appears to have included discrimination on disability, which is not relevant to the opinion and order.

² Wagner JK. The Genetic Information Nondiscrimination Act of 2008: Minimal protections but maximum publicity. Presented at the ASHG Annual Meeting. Philadelphia, PA 2008.

³ The EEOC enforcement data further show that, of the charges of discrimination filed that alleged genetic discrimination, the EEOC investigations led to determinations that there was reasonable cause to believe genetic discrimination occurred in just 13 of those instances. While itself a very low number, the 13 charges exhibiting reasonable cause out of 446 total charges in the most two recent fiscal years is generally in line with the rate at which EEOC finds reasonable cause for discrimination charges more broadly.