Pharmacy Fined Over $500K in Disability and Genetic Information Discrimination Suit

On June 14, the U.S. Equal Employment Opportunity Commission (EEOC) announced that a Cumberland, Maryland-based specialty pharmacy will pay $515,000 to settle a disability and genetic information discrimination case. Notably, the company violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) when it inquired about employee and applicant disabilities and genetic information. Employers, however, must not discriminate against federally protected classes, which include race, sex, age, disability, genetic information, and pregnancy status. Comparatively, the EEOC has ramped up its enforcement efforts in recent years. In November 2023, the agency released its Fiscal Year 2023 Agency Financial Report, announcing that systemic discrimination charges had doubled.

Background of the Disability and Genetic Information Discrimination Case

According to the lawsuit, the EEOC claimed that the company not only illegally inquired about employee disabilities and genetic information but also pressured employees to use its own pharmacy services. Specifically, the pharmacy asked employees and applicants about their hemophilia, their children’s hemophilia, and the medications they or their children took. For the most part, this information would be used to unlawfully pressure employees to use its pharmacy services. The EEOC believes this occurred because hemophilia medications are expensive, and it would help the company’s bottom line. Meanwhile, employees who refused were fired or laid off. In contrast, employees who used the pharmacy for hemophilia medications kept their jobs.

The Americans with Disabilities Act (ADA)

Signed into law in 1990, the ADA is a federal law that protects the civil rights of individuals with disabilities. The ADA forbids discrimination in the workplace and other sectors of society against people living with disabilities. Covered individuals may show they have a disability in one of three ways:

• they have a physical or mental condition that substantially limits a major life activity (walking, talking, seeing, learning, etc.)
• a person has a history of disability (for example, a cancer that is in remission)
• this person is subject to an adverse employment action, and their impairment is not transitory or minor

Qualified employees or candidates with disabilities under the ADA must have an impairment that is:

• not transitory (lasting or expected to last six months or less), or
• minor (even if he or she does not have such an impairment).

The Genetic Information Nondiscrimination Act (GINA)

GINA took effect on November 21st, 2009, and prohibits genetic information discrimination in employment. In general, the rule defines “genetic information” as information about:

• a disease or disorder in family members (family history);
• an individual’s genetic tests;
• genetic tests of an individual’s family members;
• tests of any fetus of an individual or family member; or
• any request for or receipt of genetic services, or
• participation in genetic testing or genetic counseling by an individual or family member.

An employer may never use genetic information to make an employment decision. Accordingly, such decisions include: hiring, promotion, demotion, seniority, discipline, termination, compensation, and any decision regarding terms, conditions, or privileges of employment.

Penalties in the Disability and Genetic Information Discrimination Case

Markedly, the alleged violations of the ADA and GINA occurred while the pharmacy was under prior ownership. The EEOC filed suit in the U.S. District Court for the District of Colorado. In addition to the $515,000 in monetary relief, the settlement agreed to by the new owners requires the company to:

• not to employ or contract with the company’s prior CEO and owner,
• refrain from taking adverse employment actions against employees based on their non-use of the company’s pharmacy,
• train employees on the ADA and GINA, and
• survey employees on their treatment in the workplace.

Employer Takeaways

In conclusion, according to the EEOC, the agency received 81,055 discrimination charges in Fiscal Year 2023. Of those total charges, over 36% involved disability and genetic information discrimination. Since employees may request reasonable accommodations involving particular disabilities or have limitations due to genetic information, workplaces must consider those requests carefully. To help business owners and their managers comply with state and federal reasonable accommodation laws, WorkWise Compliance (formerly Personnel Concepts) created the Reasonable Accommodations E-Learning Program for Employers and Managers. This online eLearning module includes self-guided training on correctly handling disability accommodation requests, links to digital resources, and a standalone interactive assessment tool that employers can use whenever they receive a qualifying request.