Companies that demand employees provide medical records or family medical history during pre-employment physicals or fitness-for-duty exams are being challenged under the federal Genetic Nondiscrimination Act of 2008 (GINA) and Illinois’ Genetic Information Privacy Act. Under the laws, an employer can ask for disability information or conduct medical examinations only after giving a conditional job offer and only if it does so for everyone in the same job category.
Once the employer requests such information, it must provide explicit disclosure to the worker regarding the data being collected and how they will be used to avoid violations under the laws. Companies that have been challenged for asking for family medical history have argued that general family medical history doesn’t meet the definition of genetic information and if the information is unintentionally collected, employers are protected by GINA’s safe harbor.
Texas, Heritage Challenge EEOC Harassment Guidance
In yet another challenge to the Equal Employment Opportunity Commission’s (EEOC) harassment guidance based on its interpretation of the Supreme Court’s Bostock decision, the state of Texas and the Heritage Foundation asked the court for summary judgement (dismissal in their favor without a trial), arguing the EEOC has repeatedly misconstrued Bostock and exceeded its authority. They argue the court should grant a permanent injunction blocking the guidance, including the ability to require employers to let workers dress, use pronouns, and use bathrooms that fit their gender identity. They claim Bostock only barred employers from firing workers because of their gender identity but didn’t address how this interpretation takes the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964 and applies it to bathrooms, locker rooms, and dress codes.
The state of Texas and Heritage cite an earlier decision that held Title VII doesn’t require accommodating conduct associated with a person’s gender identity even if their bathroom, pronoun, and clothing preferences relate to their transgender status. A coalition of 18 Republican state attorneys general has also asked a Tennessee federal district court to bar the guidance as government overreach.
GOP Senator Asks for More Information on Workplace Anti-Semitism
Senator Bill Cassidy (R-La.), the ranking member of the HELP Committee, sent a letter to EEOC Chair Charlotte Burrows challenging how the EEOC has reported incidents of workplace anti-Semitism after Hamas’ October 7, 2023, attack on Israel. The letter asked for more information on the number of anti-Semitic complaints in charges after the agency reported a steep uptick in religious discrimination charges. The agency had attributed the bump to COVID-19 vaccine-related disputes, but Cassidy demanded the agency provide further data on how many complaints involved anti-Semitism.
H. Juanita Beecher is an attorney with FortneyScott in Washington, D.C. You can reach her at nbeecher@fortneyscott.com.