Pre-Employment Health History Forms Violate GINA, ADA

In one of the first decisions on the issue, a federal court has ruled that an employer violated both the Genetic Information Non-Discrimination Act (GINA) and the Americans With Disabilities Act (ADA) by requiring that all job applicants complete pre-offer health history forms. The forms required applicants to reveal whether they had consulted a doctor, chiropractor, therapist or other health care provider within the past 24 months, and to identify whether “future diagnostic testing had been recommended or discussed” with their medical provider.

The case started when Phillip Sullivan, a retired law enforcement officer and a person with disabilities, learned Grisham Farm Products was hiring and decided to seek a warehouse job with Grisham. Grisham’s application included a three-page health history form with 43 questions. Sullivan was concerned he would reveal his medical conditions and disabilities to Grisham if he fully and completely answered each question on the health history form. He refused to complete the health history form, did not submit his application, and instead contacted the Equal Employment Opportunities Commission, which brought a lawsuit on his behalf.

The Court found that the application violated the ADA. The Court held that the privacy provisions of the ADA limit the scope of information that employers may seek and disclose about their employees’ medical condition. As the Court described, “the nature of the protections afforded individuals with respect to being subjected to medical examinations and inquiries by covered employers depends on the stage at which the medical information is sought: (a) pre-offer stage, (b) post-offer but pre-employment stage, or (c) employment stage.

“Because Grisham had not extended a job offer to Sullivan, it was prohibited from conducting a medical examination or making inquiries as to whether Sullivan is an individual with a disability or as to the nature or severity of such disability. The ADA’s prohibition against pre-offer medical examinations or inquiries is premised on Congress’s belief that historically, employment application forms and employment interviews requested information concerning an applicant’s physical or mental condition and Congress believed that employers were using this information to exclude applicants with disabilities – particularly those with so-called hidden disabilities – before their ability to perform the job was even evaluated. Because Grisham required all job applicants, including Sullivan, to complete a pre-offer health history form, which inquired into whether the applicant suffered from twenty-seven (27) different types of health conditions – including everything from allergies to epilepsy to breast disorder to heart murmur to sexually transmitted diseases to depression to varicose veins and beyond – this Court holds that Grisham violated the ADA.”

The Court then turned to GINA, which it described as prohibiting employers from “requesting genetic information with respect to an employee or a family member of the employee. The term ‘employee’ as used in the statute includes an applicant for employment. The GINA statute and regulations do not, however, prohibit an employer from requesting non-genetic medical information about a ‘manifested’ disease, disorder, or pathological condition of an employee, even if the manifested disease, disorder, or pathological condition has or may have a genetic basis or component. A disease, disorder, or pathological condition is considered manifested if the individual has been or could reasonably be diagnosed with the disease, disorder, or pathological condition by a healthcare professional.

“Grisham’s application requires applicants to reveal whether they have consulted a doctor, chiropractor, therapist or other health care provider within the past 24 months and to identify whether future diagnostic testing has been recommended or discussed with their medical provider. These questions would require an applicant without the manifestation of, for example, high blood pressure, heart disease, or breast cancer, who has preventatively consulted with a physician or been told by a physician to get diagnostic testing in light of their family history or risk factors, to reveal such information to Grisham. The Court finds the solicitation of such information is a violation of GINA.”

EEOC v. Grisham Farm Products, Inc., 2016 WL 3221161 (W.D. Mo. 2016).