Atlanta Employment Lawyer Blog

Last November, the Genetic Information Nondiscrimination Act “GINA” became law. GINA provides a general ban on employers’ obtaining genetic information about employees or job applicants, including the inadvertent acquisition of the information for use in employment decisions. Almost a full year after GINA became effective, the EEOC has issued final regulations interpreting its application.

The EEOC final regulations are intended to provide guidance regarding many issues currently existing in the work place as well as anticipated issues regarding genetic data.

Significant provisions of GINA include –

• Family medical history questions no longer allowed. Employers are prohibited from questioning employees/new hires during “fitness for duty” or other post-job offer medical exams regarding family medical history.

• Genetic information allowed for treatment only. Employers are not allowed to use genetic information in making employment decisions, however they may inquire about genetic information for treatment purposes.

• Protected genetic information must be kept separate. Genetic information may not be included in an employee’s personnel file. Similar to provisions in the Americans with Disability Act (ADA), it is critical to maintain confidentiality regarding genetic information.

• Employers cannot search internet or social networking sites as a means to discover an individuals’ genetic information. Employers may not be liable for obtaining genetic information inadvertently, such as through casual conversation or overhearing employees’ conversations, however employers may not search the internet in order to obtain prohibited genetic data.

• Covered acts include both harassment and retaliation based on genetic material.

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Despite significant advances, race discrimination continues to be a problem at many workplaces. A recent case has determined that an employee who suffered verbal assaults such as being called the “n word” by his boss can proceed with his claim for a hostile work environment.

In Taylor v. Bob-Rohr-Indy Motors, an African American car salesman – Johnny Taylor - endured pushing and disrespectful comments from his sales manager, James Mueller. Here, a series of incidents occurred over several weeks including Mueller using a disrespectful tone when asking for assistance, telling Taylor he was “not a man of his word” when he failed to bring in food for a salespersons’ lunch, and punching Taylor in the shoulder and stated that “you think we owe y’all people something.”

Despite the offensive nature of these comments and actions, Taylor failed to submit a written report to his supervisor. Taylor subsequently went to the EEOC to find out about filing charges based on religion and disability, but not race.

Mueller continued to taunt Taylor, with Taylor becoming angry and threatening Mueller after calling he called him the “n word” and said, don’t you be standing in front of me.” After being sent home for the weekend, Taylor filed an EEOC claim based on race harassment.

The court determined that the alleged actions constituted sufficient evidence to survive summary judgment, and allowed Taylor’s claim to proceed. The court reasoned that despite conflicting testimony, a genuine issue of fact existed whether Taylor was subjected to derogatory comments and racial slurs. Further, no evidence suggested that Taylor welcomed or participated in the use of the racially charged words. As such, a reasonable jury could find that the language was unwelcome and based on his race.

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Pregnancy discrimination occurs when expectant women are fired, not hired or otherwise discriminated against as a result of their pregnancy or their desire to become pregnant. In a recent case, a social worker whose job was eliminated but was not allowed to be considered for another job was allowed to proceed with her claims against her former employer.

In Ferdinand-Davenport v. Children’s Guild, a woman – Na’imah Ferdinand-Davenport - worked as a clinician/social worked at The Children’s Guild (TCG). Two days after receiving a promotion, Ferdinand-Davenport announced she was pregnant. Five months later, she was told her job might be eliminated. At the same time, other employees were notified that their positions were in jeopardy but were told of alternative job opportunities not disclosed to Ferdinand-Davenport.

Although the employer alleged that the employee failed to plead sufficient facts, the court disagreed, noting that once Ferdinand-Davenport was aware of the open positions, she attempted to apply for the jobs but TCG failed to return her phone calls or provide her the applicable information so her efforts at applying were unsuccessful. The court explained, “the employer does not escape responsibility for discriminatory failure to hire by making the application process so onerous for a candidate within a protected class that he or she is denied the opportunity to apply at all.”

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A recent Wisconsin federal court decision serves as a victory for those discriminated against due to depression. In Ekstrand v. School Dist. of Somerset, a jury determined that a school district should pay a schoolteacher more than $2 million for failing to provide her with a classroom window because she has seasonal affective disorder (“SAD”).

Under the Americans With Disabilities Act (“ADA”) if you are a qualified individual with a disability, your employer must make an effort to reasonable accommodate your disability. Accommodations can be simple – such as changing your start time by a few minutes or altering your workspace. If your employer fails to accommodate you, in most cases it is possible to file an ADA discrimination charge. However, in instances where the request is too expensive or burdensome, accommodations may not be required.

In Ekstrand, after working several years for the school district, a teacher was moved to a room with no windows. Even though she told the school district that she had SAD, a form of depression that occurs based on a lack of exposure to natural light, the school failed to “reasonably accommodate” when requested by moving her to a classroom with windows.

Although the amount the teacher will receive was reduced due to caps on damages, the verdict sends a message to employers that depression and other disabilities must be taken seriously and accommodated where reasonable.

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