Employment Law Alert : Gibbons P.C.: Labor Relations, Employment Contracts, Employee Benefits, & Wrongful Discharge Lawyers & Attorneys

The EEOC’s focus on the protection of LGBT employees follows its April 2012 decision in Macy v. Holder, Appeal No. 0120120821 (April 20, 2012), about which we previously blogged, in which the EEOC determined that Title VII affords protection to these employees. The EEOC also takes the position that discrimination based on sex includes discrimination based on a failure "to conform to socially-constructed gender expectations."

Director Gigante cited the rise in pregnancy-related charges filed by older women and discussed the interplay between the Americans with Disabilities Act, the Americans with Disabilities Act Amendments Act, the Pregnancy Discrimination Act, and the Family Medical Leave Act in pregnancy-related discrimination claims. The EEOC is particularly interested in cases alleging failure to accommodate pregnant employees.

The panel also discussed disability discrimination and failure to accommodate claims, with a particular focus on no-fault attendance and fixed leave policies, both of which have been the subject of litigation by the EEOC. Employers should carefully review their attendance and leave policies to ensure that they do not run afoul of the anti-discrimination laws. Director Gigante emphasized that employers should determine the individual needs of the disabled employee in order to identify reasonable accommodation. While it is important to initiate the accommodation process to ensure compliance, Director Gigante noted that the employer need not accept the specific accommodation requested by the employee and that undue hardship to the employer remains a valid consideration.

With respect to recruitment and hiring, Director Gigante reiterated the EEOC’s continuing concern with facially-neutral pre-employment tests and requirements that have a disparate impact on employees belonging to a protected class. Moreover, employers can expect close scrutiny if they elect to use background checks and criminal history reports to screen applicants. It is critical that employers be familiar with the EEOC’s April 2012 guidance on the use of criminal background checks, including the need to perform individualized assessments, and with any state or local laws that may impose further limitations. In addition, the EEOC’s Plan specifies that it will specifically target a number of additional discriminatory recruitment and hiring practices, including exclusionary practices and policies, channeling/steering individuals into jobs due to their status in a particular group, and restrictive application processes.

For information on how employers can protect their businesses and comply with the law, or for an audit of workplace policies and practices, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.

Susan L. Nardone is a Director in the Gibbons Employment & Labor Law Department. Daniel A. Schleifstein, an Associate in the Gibbons Employment & Labor Law Department, co-authored this post.

Using “A Summary of Your Rights Under the Fair Credit Reporting Act”

An employer must provide an employee/potential employee with the form “A Summary of Your Rights Under the Fair Credit Reporting Act” before taking any adverse action based on a consumer report regarding an applicant/employee. This report may be obtained following separate written notice to, and written permission from, the applicant/employee. Further, the form also must be provided to an applicant/employee before an employer obtains an “investigative consumer report” on an applicant/employee. An investigative report is more detailed, and somewhat more intrusive, than an consumer report because it seeks information concerning a consumer’s character, general reputation, personal characteristics or mode of living, and is obtained through personal interviews with that consumer’s neighbors, friends, associates or acquaintances.

For answers regarding matters involving compliance with the FCRA’s regulation of employment background checks, please feel free to contact any attorney in the Gibbons Employment & Labor Department.

Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department.

Employers must obtain a signed acknowledgment from employees within 30 days of the employee’s receipt. It is the first of its kind for NJ employers to require employees to sign an acknowledgment of having received the notice. The notice must be posted and distributed in English and Spanish and in any other language the State has made the poster available -- if the employer reasonably believes the alternative language is the first language of a significant portion of its workforce.

Some Questions Remain

Employers may receive more guidance from the New Jersey Department of Labor and Workforce Development once it issues the form “notice” to be posted and distributed. The New Jersey Wage and Hour Law (WHL) provides for penalties for non-compliance. It is not clear whether a violation of this new law will trigger the standard penalties under the WHL. Also, it is not clear whether an employer’s failure to provide the notice could be used as evidence in litigation in support of a claim for higher damages.

Guidance for Employers

The notice and distribution requirement applies to employers with 50 or more employees. However, the New Jersey Law Against Discrimination, which prohibits gender-based discrimination in compensation and benefits in the workplace, applies to all employers. Title VII of the Civil Rights Act of 1964 and the Equal Pay Act, which similarly prohibit gender discrimination, have other thresholds. For example, Title VII applies to employers with 15 or more full or part-time employees. Although employers who are covered by these statutes may be exempt from the new posting requirement, employers still must comply with the federal and state anti-discrimination obligations.

Pay discrimination has become a hot issue. A recent, major initiative of both the Equal Employment Opportunity Commission and the equivalent state agencies has been to address compensation inequality based on gender. Employers should take the time in light of this new notice obligation to audit their compensation practices and systems (with counsel) to identify any disparities and/or prepare to defend against them if challenged through documentation and/or reasonable explanations.

Criminal Background Inquiries for Newark Employers

Effective November 18, 2012 based on a newly enacted Ordinance, employers of 5 or more employees who employ persons -- or take applications for employment -- in the City of Newark are generally prohibited from (1) conducting pre-application criminal background checks and inquiries and (2) denying employment based on the results of a criminal background check conducted post-offer unless the employer first conducted an individualized analysis of the criminal background using factors listed in the new Ordinance. An employer may discuss an applicant’s criminal background pre-offer if the applicant discloses his/her criminal history voluntarily and without solicitation. There exist some exemptions from the Ordinance, such as mandatory state and federal regulations requiring an employer to consider a criminal history for hiring decisions.

Requirements to Conduct Criminal Background Checks

An employer may not inquire about an applicant’s criminal background pre-offer unless it has made a “good faith determination that the relevant position is of such sensitivity that a criminal history inquiry is warranted.” If an employer conducts a criminal background check on an applicant post-application after a conditional offer has been made, the employer must provide the applicant prior notice and obtain an authorization to conduct the check (similar to an employer’s requirement under the state and federal Fair Credit Reporting Act). The notice also must inform the applicant that he/she will be afforded the opportunity to present evidence regarding the accuracy and relevance of the background check results.

Permissible Consideration by Employer

An employer may inquire about (1) convictions for up to 8 years from sentencing; (2) disorderly persons convictions or municipal ordinance violations for up to 5 years from sentencing; and (3) pending criminal charges (including cases continued without a finding prior to a dismissal). Certain exceptions exist for violent crimes.

Prohibited Actions

Employers may not inquire about, require a candidate to disclose or take any adverse action based on: (1) an arrest or criminal accusation not currently pending; (2) records which have been erased, expunged or subject to an executive pardon; and (3) a juvenile adjudication of delinquency or records which have been sealed.

Required Analysis to Use Criminal History for Hiring Decisions

An employer must consider the following factors when basing a hiring decision on a criminal background:

• The nature of the crime and relationship to the duties of the position;
• Information pertaining to the degree of rehabilitation and good conduct;
• Whether the job provides the applicant the opportunity to commit a similar offense;
• The length of time that elapsed since the offense; and
• A certificate of rehabilitation issued by a state or federal agency.

The employer is required to document its analysis of these factors using an “Applicant Criminal Record Consideration” form.

Notification to Applicant and Opportunity to Review Decision

If an employer makes a hiring decision based on an applicant’s criminal record history, it must notify the applicant of the rejection, provide the applicant a copy of the criminal record inquiry and a copy of the Applicant Criminal Record Consideration form. The employer also must state the reason for the adverse decision and include consideration of the factors listed above. Finally, the employer must advise the applicant of the opportunity to review the decision and the manner for the applicant to present evidence relevant to the employer’s consideration. The applicant has 10 days from receipt of the notification to respond. If an applicant timely responds, the employer must consider the applicant’s evidence prior to making a final decision. The employer must document the evidence received from the applicant as well as its final decision and notify the applicant of the final decision in a reasonable amount of time following receipt of the applicant’s evidence.

It remains to be seen how the new law will be enforced. For now, the Mayor of Newark is authorized to create an office of agency to implement and enforce the Ordinance. Penalties will range between $500 to $1000 per violation. However, the Ordinance does not address whether there exists a private right of action to enforce it.

These obligations will require employers to re-visit their background check procedures and hiring guidelines with regard to criminal backgrounds. It will take time to see how the Ordinance impacts the local economy of Newark.

For assistance with matters involving employee notices and criminal background checks, please contact an attorney in the Gibbons Employment & Labor Law Department.

Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department.

In US Airways, Inc. v. Barnett, the Supreme Court held that “in the run of cases” it would be an “undue hardship” under the ADA to require an employer to forego its well established seniority system in filling a vacant position in favor of a disabled employee. The Court reasoned that seniority systems provide “important employee benefits by creating, and fulfilling, employee expectations of fair, uniform treatment. These benefits include ‘job security and an opportunity for steady and predictable advancement based on objective standards.’" But seniority systems aside, the Supreme Court ruled that an accommodation request to fill a vacant position should not be considered unreasonable merely because it provides a “preference” in the sense that it permits a disabled worker “to violate a rule that others must follow” or merely because the employer’s policy for filling vacancies is disability-neutral.

In light of Barnett, the Seventh Circuit concluded that requiring an employer to forego a policy of filling a vacant position with the best qualified candidate would not automatically constitute an undue hardship for ADA purposes. The court reasoned that such policies do not present the issues of property rights and administrative concerns presented by seniority polices. Although the court did not hold that policies such as United’s could never constitute an undue hardship, and ruled that the district courts should evaluate such policies on a case-by-case basis, the clear import of the court’s decision is that in “the run of cases” requests by disabled employees to fill vacant positions will be deemed a reasonable accommodation and employers will have a heavy burden to demonstrate undue hardship if required to forego a policy of filling vacancies with the most qualified candidates.

Conclusion

The Seventh Circuit is now the third circuit court to have concluded that an employer’s policy of filling vacant positions with the best qualified person at the expense of a disabled employee is suspect under the ADA. Only one court has held to the contrary, and in that case the Supreme Court granted certiorari only to have the case settle before the Court could decide the issue. Although in most jurisdictions there is currently no definitive ruling on the issue, a “reading of the tea leaves” strongly suggests that an employer who cannot demonstrate a significant hardship if it were to grant a disabled employee’s request to fill a vacant position runs a considerable risk that it will not fare well in any ensuing litigation. If you have any questions regarding the accommodation of disabled employees, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department with any questions that you may have.

Richard S. Zackin is a Director in the Gibbons Employment & Labor Law Department.

In United Airlines, the panel hearing the appeal concluded that it did not have the authority to reverse the Court’s earlier decision in Humiston-Keeling. Finding the logic of the EEOC’s position persuasive, however, the panel “strongly” recommended en banc consideration of the issue. The other circuits that have considered the precise issue are divided. The Eighth Circuit has adopted the Seventh Circuit’s position, but the Ninth and Tenth Circuits have concluded that employers must demonstrate “undue hardship” for ADA purposes when rejecting an accommodation request for a vacant position and cannot merely rely on the availability of more qualified candidates.

Conclusion

It is likely that the Supreme Court will take up this issue at some point. Indeed, the Supreme Court granted certiorari in the above-noted Eighth Circuit case, but the case settled before the Court could render a decision.

Employers should review requests to fill vacant positions as an accommodation on a case-by-case-basis. Although in most jurisdictions there is currently no definitive ruling on the issue, an employer who cannot demonstrate undue hardship when denying such a request in favor of a more qualified employee runs a not insignificant risk that it will not fare well in any ensuing litigation.

If you have any questions regarding the accommodation of disabled employees, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department with any questions that you may have.

Richard S. Zackin is a Director in the Gibbons Employment & Labor Law Department.

Certain states provide for a state-equivalent to FMLA leave for serious health conditions of employees and their immediate family members or for other forms of leave for medical reasons. If a state requires additional or different leave notification and forms, an employer should continue to comply with those state requirements. However, it also should consider including the GINA “safe harbor” notice in its employee communications and notices.

For templates of these updated forms including the GINA notice, please contact an attorney in the Gibbons Employment & Labor Law Department.

Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department.

Impact on Employers

While the EEOC’s interpretation of Title VII is not binding in a court of law, the Courts often defer to it and therefore employers in both the public and private sector should take note of the Macy decision. In addition, while federal courts have taken different positions on the issue of transgender status discrimination, more recent decisions have agreed with the EEOC’s conclusions in Macy. Accordingly, employers should seriously consider revising their anti-harassment and discrimination policies so as to include gender identity and gender expression as protected characteristics. Moreover, employers should be aware of their own state discrimination laws that may address this issue. In New Jersey, for example, the Law Against Discrimination already prohibits discrimination based on one’s “gender identity or expression,” which is defined as “having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person’s assigned sex at birth.”

The attorneys in the Gibbons Employment & Labor Law Department are available to provide additional information and training with regard to employers’ efforts to maintain a discrimination and harassment-free workplace.

Michael J. Riccobono is an Associate in the Gibbons Employment & Labor Law Department.

According to the new guidance, “[t]o establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.” The EEOC suggests that an employer can consistently meet this test by (a) validating the screen using the Uniform Guidelines on Employee Selection Procedures or (b) developing a targeted screen that takes into account the Green factors and then offers an opportunity for an individualized assessment. The individualized assessment gives the applicant/employee notice of the results and then an opportunity to offer additional information demonstrating why the exclusion should not apply.

According to the EEOC, the employer must have some basis for drawing a connection between the crime and its importance to the job, such as "fact-based evidence, legal requirements, and/or relevant and available studies." By way of example, a policy that excludes an applicant convicted of theft or dishonesty for a position in which the applicant would have access to personal financial information or money where the conviction occurred in the four years prior to the application may be an appropriate targeted exclusion if the employer can explain, with reference to some fact or study, why the policy was adopted. The examples the EEOC gives include national criminal data and recidivism research.

Also of note in the guidance:

• Title VII does not preempt federal laws that prohibit employment of individuals with specific convictions in certain industries or positions in the public and private sector.
• State and local laws are preempted by Title VII if they result in an unlawful employment practice. This means that following a state or local law is not a defense - the employer must still show job relatedness and business necessity.

The EEOC offers a number of “Employer Best Practices,” including the elimination of policies that exclude individuals because of any criminal record, the development of narrow policies and practices that closely correlate the essential job requirements with the specific offense, documented justification for the policy procedure, and training of managers.

For a related article on the new EEOC Guidance, including commentary by Gibbons Employment & Labor Law Director, Susan L. Nardone, click here. To discuss any of your company’s employment or e-discovery needs, contact any attorney in the Gibbons Employment & Labor Law Department.

Susan L. Nardone is a Director in the Gibbons Employment & Labor Law Department.

The major significance of the new regulations is found in their characterization of what is a “reasonable” policy or practice and in their elaboration of the criteria to be considered in analyzing an RFOA defense for “reasonableness.” Under the regulations, a reasonable factor other than age is one “that is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances” to be determined “on the basis of all the particular facts and circumstances surrounding each individual situation.” The employer must demonstrate that the reasonable factor “was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts ad circumstances that were known, or should have been known, to the employer.” 29 C.F.R. § 1625.7(e(1).

In its commentary, the EEOC expressly disavows that its characterization of “reasonableness” is akin to the “business necessity” defense applicable to Title VII disparate impact cases. Nevertheless, the EEOC cautions that employers must do more than merely demonstrate that the policy or practice in question is rational or non-arbitrary. Smith v. City of Jackson did not open the floodgates for ADEA disparate impact claims. Whether there will be any significant increase in ADEA disparate impact claims as a result of the new regulations interpreting the RFOA defense remains to be seen.

The regulations’ enumerated criteria for analyzing reasonableness are:

• The extent to which the employer’s practice is related to the employer’s stated business purpose;
• The extent to which the employer defined its practice accurately and applied it fairly and accurately, including the extent to which the employer provided supervisors with guidance or training about how to apply the practice and avoid discrimination;
• The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
• The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
• The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.

29 C.F.R. § 1625.7(e)(2). The regulations themselves and the commentary make clear that that additional criteria may be relevant and that the presence or absence of one or more of the enumerated considerations will not be dispositive on the “reasonableness” issue.

Obviously, the regulations do not provide a bright line test for “reasonableness.” At this point it is unknown to what extent the “prudent employer” standard announced in the regulations will be interpreted by courts as requiring affirmative steps by employers to guard against the adverse impact of its policies or practices on older workers. Employers will have to carefully consider the new regulations on a case-by-case basis, especially if the employer has reason to suspect that a given policy or practice is having an adverse impact on older workers.

Please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department with any questions that you may have.

Richard S. Zackin is a Director in the Gibbons Employment & Labor Law Department.

Writing for the Court, Chief Justice Roberts officially recognized the ministerial exception and rejected the Sixth Circuit’s analysis, emphasizing that:

members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.

Accordingly, the Court concluded that the ability of religious groups to choose who will preach their beliefs, teach their faith, and carry out their mission is paramount. The Court, however, stopped short of defining the term “minister,” and stated that it was reluctant “to adopt a rigid formula for deciding when an employee qualifies as a minister.”

As it related to Perich, the Court held that she was covered by the ministerial exception “given all the circumstances of her employment.” Among the factors weighed by the Court were: (1) the School held Perich out as a minister, (2) Perich’s title as minister reflected a significant degree of religious training followed by a formal process of commissioning, (3) Perich held herself out as minister of the Church by, amongst other things, claiming a special housing allowance on her taxes that was available only to employees earning their compensation “in exercise of the ministry,” and (4) Perich’s job duties reflected a role in conveying the Church’s message and carrying out its mission.

Despite its refusal to define “minister” in its “first case involving the ministerial exception,” the Court did provide guidance regarding the extent to which ministers perform secular duties and vice versa – the extent to which lay employees perform duties performed by ministers. Specifically, the Court found that the Sixth Circuit gave too much weight to the fact that lay teachers (who were not commissioned ministers) performed the same religious duties as called teachers. Further, the Court found that the Sixth Circuit placed too much emphasis on the fact that Perich performed secular duties. Under these facts, Perich’s religious duties consumed only 45 minutes of each workday. As Chief Justice Roberts noted, the issue of whether someone is a minister “is not one that can be resolved by a stopwatch. The amount of time an employees spends on particular activities is relevant in assessing that employee’s status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed” as well as the other considerations discussed above. Moreover, the Court made clear that the ministerial exception is not limited to the head of a religious organization.

What is important for religious employers to remember is that the Court’s decision in Hosanna-Tabor Evangelical Lutheran Church does not create a blanket exception from all wrongful termination lawsuits for religious group employers. Rather, the decision merely creates an exception for those employees who qualify as “ministers,” which is a case-by-case determination. Accordingly, before taking any adverse actions against employees, religious group employers should continue to evaluate their decisions and consider: (1) whether the employee qualifies as a minister, and (2) whether there is any legal risk in taking action. Attorneys in the Gibbons Employment & Labor Law Department can assist with any questions that you may have.

Peter J. Dugan is an Associate in the Gibbons Employment & Labor Law Department.

The Supreme Court’s Decision

Writing for the majority, Justice Scalia began by comparing the statutory language of Title VII’s anti-retaliation provision with its substantive anti-discrimination provision. Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin “with respect to . . . compensation, terms, conditions, or privileges of employment,” and discriminatory practices that would “deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.”

Title VII’s anti-retaliation provision, however, prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Interpreting this statutory language, the Court had no difficulty concluding that “a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”

Having addressed the scope of Title VII’s anti-retaliation provision, the Court then analyzed “the more difficult question in this case,” which was whether Thompson himself could sue. Noting that Title VII provides that “a civil action may be brought . . . by the person claiming to be aggrieved,” the Supreme Court found that Thompson was himself a “person aggrieved” within the meaning of Title VII and applied a “zone of interests” test to determine that he had standing to sue under the statute. To illustrate, the Court emphasized that “injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her.” As such, the Court concluded that he qualified as a “person aggrieved with standing to sue.”

Analysis

While acknowledging the fact that the decision would lead to “difficult line-drawing problems concerning the types of relationships entitled to protection,” the Court did not believe such a concern justified a “categorical rule that third-party reprisals do not violate Title VII.” Indeed, the Court also “decline[d] to identify a fixed class of relationships for which third-party reprisals are unlawful.” Specifically, the Court speculated that “firing a close family member will almost always [suffice, but] inflicting a milder reprisal on a mere acquaintance will almost never [be enough].”

Conclusion

It is important for employers to be aware of the implications of the Supreme Court’s decision in Thompson v. North American Stainless, LP. Because third parties now have standing to sue for retaliation under Title VII - even when they do not engage in any protected activity - employers should be cautious in taking any adverse employment action against a spouse, fiancé, or family member of an employee who has, in fact, engaged in protected conduct under the statute. The decision does, however, create a number of delicate issues for employers. While spouses, fiancés, and family members would undoubtedly qualify as relationships entitled to protection, the Court did question whether “firing an employee’s girlfriend, close friend, or trusted co-worker,” would “dissuade the employee from engaging in protected activity.” The Supreme Court’s decision declined to delineate a bright-line rule, and instead instructed lower courts that “the significance of any given act of retaliation will often depend upon the particular circumstances.” In light of the Thompson case, employers should consider revising their anti-retaliation policies as noted above. Additionally, cautious employers should ensure that their legitimate reasons for terminating employees or taking other adverse actions are sufficiently and properly documented.

Michael J. Riccobono is an Associate in the Gibbons Employment Law Department.

In addition to establishing clear and “user-friendly” policies, employers can help improve conduct, provide guideposts for compliance with the laws, and increase consistency in application of policies and decision making concerning employees, as well as ultimately reduce claims and costs, by training their employees. Why not start now?

To discuss your company’s training needs, contact any attorney in the Gibbons Employment Law Department. And watch for more posts on training and information about exciting new Gibbons educational programs on this blog.

Kelly Ann Bird is a Director in the Gibbons Employment Law Department.

• With limited exceptions, employers may not “request, require or purchase genetic information of an individual or family member of the individual.” A “request” includes: (1) internet searches that are likely to result in the employer obtaining genetic information; (2) making requests for information about an individual’s current health status in a manner that will likely result in the disclosure of genetic information; and (3) actively and intentionally listening to third party conversations or searching a person’s personal effects for the purpose of obtaining genetic information. Exceptions to this rule include:
  • the “water cooler” exception, whereby an employer has obtained genetic information inadvertently such as by overhearing a conversation involving genetic information “at the water cooler;”
  • receiving a response to an ordinary expression of concern about an employee’s health that includes genetic information; and
  • obtaining genetic information from health risk assessments that employees must complete in connection with voluntary employee wellness programs for which they receive a financial incentive, so long as the assessment specifically identifies which questions request genetic information and plainly states that responding to those questions is optional and that that the financial incentive will be provided regardless of whether employees answer those specific questions.
• Employers are not required to remove genetic information from personnel files where such information was placed in the files before November 21, 2009. Employers may maintain genetic information about an employee in the same file in which it maintains confidential medical information that is subject to the Americans with Disabilities Act. This information should be maintained separately from employee personnel files and should be treated as confidential.

The same remedies available to employees under Title VII of the Civil Rights Act of 1964 are available for employer violations of Title II of GINA. Employers should also be aware that GINA does not preempt state or local laws that provide equal or greater protections than GINA from genetic discrimination or from improper access or disclosure of genetic information. Therefore, employers should also obtain legal advice regarding the relevant state law(s) to determine whether they are subject to stricter requirements.