Genetic Discrimination: When an Isolated Incident is not Enough

On May 23, 2012, a Kentucky federal court ruled that the Equal Employment Opportunity Commission (EEOC) was not entitled to enforce an investigative subpoena seeking disclosure regarding the acquisition of genetic information of employees at a Nestlé Prepared Foods facility. EEOC v. Nestlé Prepared Foods, No. 5:11-mc-00358 (E.D. KY May 23, 2012). The EEOC issued the subpoena requesting documents that would show the name and contact information of each physician to whom Nestlé referred individuals for physical or medical examinations, and documents revealing the individuals subjected to fitness-for-duty or post-offer exams with reasons for why there were or were not hired. The EEOC issued the subpoena while investigating a charge filed by Michael Peel after he was fired by Nestlé after he completed a fitness-for-duty evaluation by a private physician retained by the company.

During the evaluation, Peel was instructed to complete a family medical history questionnaire that required him to reveal specific medical conditions. Peel was later fired within the same month of the evaluation for allegedly taking excessive breaks from work. Peel alleged discrimination based on retaliation, disability and specifically, genetic information in violation of the Genetic Information Nondiscrimination Act (GINA).

Nestlé refused to comply with the subpoena and filed a petition with the EEOC to revoke it. The court acknowledged that while it is important for the EEOC to have “the ability to investigate possible patterns of discriminatory action,” not every charge of discrimination “justifies an investigation of the employer’s facility-wide employment practices.” Judge Joseph M. Hood noted that “the U.S. Supreme Court has cautioned that limits be imposed” and the court “is not persuaded that it has free rein to conduct a broad, company-wide investigation based on a single allegation of an isolated act of discrimination.” The EEOC argued that other discrimination charges would flow from Nestlé’s practices, but ultimately were unable to provide information on systemic genetic discrimination to persuade the court to enforce the subpoena. Had there been a visible pattern, such as the filing of charges by multiple employees, the court’s outcome would have likely been different.


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