“Health History” form on employment application violated ADA and GINA

Lev Craig and Edgar M. Rivera, Esq.

When Philip Sullivan decided to apply for a warehouse job at Grisham Farm Products, Inc. (Grisham), he learned that Grisham required all applicants to complete a 3-page “Health History” as part of their employment application. This form asked applicants to respond to 43 questions concerning their medical histories, including whether they had consulted with a healthcare provider in the past 24 months or suffered from specific medical issues, such as heart conditions, depression, and sexually transmitted infections, among others.

As Mr. Sullivan has disabilities, he was worried that his answers would reveal them and thus negatively impact his chances in the hiring process; therefore, he decided not to apply for the job and instead contacted the Equal Employment Opportunity Commission (EEOC). The EEOC sued Grisham on his behalf, alleging violations of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). The ADA prohibits employers from inquiring into a person’s medical history before making a conditional offer of employment, and GINA prohibits employers from requesting genetic information from job applicants.

On June 8, 2016, a district court held that Grisham’s “Health History” form violated the ADA and GINA. Although the ADA allows employers to inquire into an applicant’s ability to perform essential job-related tasks before making an offer, it prohibits them from explicitly asking if an applicant has a disability. For example, if a job requires driving, an employer may ask if an applicant has a driver’s license but cannot ask whether the applicant has a visual disability. This restriction is intended to ensure that individuals with disabilities are not summarily disqualified before their ability to perform the job can be fairly assessed. By requesting information about applicants’ medical conditions and disabilities during the pre-offer stage, Grisham violated this provision of the ADA.

Similarly, GINA generally prohibits employers from requesting such genetic information from job applicants (even indirectly, as in Grisham’s application). The exceptions to this prohibition were not at issue here. GINA defines genetic information as “information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as…family medical history.” Grisham’s “Health History” form required applicants to state whether they had consulted with a medical provider in the past 24 months and if a medical provider had recommended them for future diagnostic testing. Effectively, this question required applicants who had preventatively consulted with a physician about their family history or genetic risk factors to reveal this information on their applications.

If you received an employment application requesting medical or genetic information, your rights under the ADA and GINA may have been violated, and you should contact The Harman Firm, LLP.