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Employer Alert: Is Your Request for Medical Cert Setting You Up for a Discrimination Lawsuit?

February 26, 2015 |
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On November 10, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued a press release announcing that it was settling a lawsuit it had filed on behalf of a class of individuals it claimed were subjected to illegal inquiries about medical and genetic information in applying for jobs with a seed and fertilizer company in Southern California.

In the case of EEOC v. All Star Seed, et al., the EEOC alleged that the defendant company required job applicants to undergo physical exams and complete questionnaires about their health and medical history that violated federal laws including the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”).  GINA prohibits an employer from collecting or inquiring about genetic information, which includes information about genetic tests of an individual or his family members or the manifestation of any disease or disorder in his family members.  All Star Seed’s questionnaires allegedly violated the ADA and GINA by asking about the individuals’ medical conditions and family histories, which included genetic information.

One applicant disclosed a prior medical condition that also ran in his family.  Even though that medical condition was unrelated to the job he was applying for, he was not hired, allegedly because the company perceived him to have a disability.  Three other class members who responded to similar inquiries had been hired.

As part of the settlement, the company had to pay $187,500 and enter into a four-year consent decree under which it is prohibited from subjecting job applicants and employees to medical exams before offering employment; making inquiries into medical conditions which have no relationship to the job the applicant is seeking; asking about an applicant’s or employee’s genetic information; and failing to maintain the confidentiality of applicants’ and employees’ medical information.

The company further has to revise its policies and procedures to comply with the ADA and GINA and make them available in both English and Spanish (as its workforce contains native-Spanish speakers).  It also must provide biannual training to its managers and supervisors regarding the legal requirements of the ADA and GINA.  Finally, the company also must hold its managers and supervisors accountable in their performance reviews for any failure to comply with antidiscrimination policies.

The case illustrates the importance of having “safe-harbor” language in your requests for medical certification which state that the company is not asking the applicant or employee to provide any genetic information.

If you have questions about how this development impacts your business, please contact one of Berliner Cohen’s employment attorneys.

Christine H. Long, (408) 286-5800,

Susan E. Bishop, (408) 286-5800,

Eileen P. Kennedy, (408) 286-5800,

Kara L. Arguello, (408) 286-5800,

Jennifer Y. Leung, (408) 286-5800,


©2015 Berliner Cohen. This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship and no attorney-client relationship is created through your use of the Berliner Site or your receipt of the materials.

Berliner Cohen’s experienced employment law attorneys advise and represent employers and managers on a full range of legal issues affecting the workplace, including harassment and discrimination, unfair competition and trade secrets, wrongful discharge, wage and hour issues, and labor disputes. Berliner Cohen also is skilled in representing employers in both State and Federal Class Action cases. For almost fifty years, Berliner Cohen, founded and headquartered in San Jose, California, has been one of the most highly-respected full-service business law firms in the region. Berliner Cohen possesses the specialized expertise required to serve the business and regulatory needs of a diverse clientele, which includes publicly-traded corporations and privately-held entities across various sectors, public agencies and governmental entities, leading real estate developers, owners, operators, managers and investors, and banking and other financial institutions. Berliner Cohen also meets the growing demands of the San Joaquin Valley with its Merced and Modesto offices.