Worldwide Network Services, LLC (“WNS”), a minority-owned company, held a subcontract with DynCorp International, LLC (“DynCorp”) for government-related work in Iraq and Afghanistan.  The relationship between WNS and DynCorp began to deteriorate when DynCorp hired new executives for the company.  Shortly thereafter, DynCorp decided not to renew WNS’s contract and stopped payment on work that was already completed.  There was also evidence that DynCorp executives exhibited racial animus towards WNS owners.

WNS brought suit against DynCorp, alleging discrimination under § 1981 as well as tortious interference and breach of contract claims.  After a jury trial, WNS was awarded $3.42 million on the discrimination claim, $83,000 on the tortious interference claim, $1.3 million on the breach of contract claims, and $10 million in punitive damages. 

On appeal to the Fourth Circuit, DynCorp argued that the jury instruction on the discrimination claim and punitive damages was erroneous, and that certain evidence should have been admitted and other evidence excluded.  The court upheld the jury instruction on the discrimination claim, finding it was not an abuse of discretion.  The court also affirmed the district court’s denial of DynCorp’s Rule 50(b) motion on that claim, and upheld the district court’s ruling on the evidentiary issues.

With regard to the punitive damages award, the Fourth Circuit reviewed de novo the district court’s denial of DynCorp’s Rule 50(b) motion on this issue.  The court began its analysis by stating that a punitive damages award under § 1981 requires “evidence that the defendant acted in the face of a perceived risk that [its] decision would violate federal law.”  The court stated that after “combing the record,” it had found no evidence suggesting that DynCorp terminated WNS’s contract with the knowledge that its actions would be in violation of federal law.  Further, the court found that the lower court’s jury instruction on the punitive damages issue was erroneous.  The court stated that the instruction failed to define “malice” or “reckless indifference,” terms which a layperson could not have known pertained to DynCorp’s knowledge that it was violating a federal law.

The company describes itself as “the Internet’s only site committed to the development of truly customized, perfect job references” and offers different packages consisting of either a live receptionist or a voice mail service to field job reference inquiries.  Job seekers are encouraged to provide their desired career field and the company will act as a past employer in that field with a “real” business address, 800 number, and website.  Interestingly, the company’s disclaimer states that it “will not be liable or responsible for any false information that you tell CareerExcuse.com about your past employment history.”  The company also expressly disclaims any and all express or implied warranties with respect to its services and materials or products.  But the company does not just stop at fake references and work histories – it offers a wide variety of other services, including fake doctor’s notes, college degrees and transcripts, landlord references, and even funeral excuses!

An employee of Information Technology Solutions (“ITS”), Alejandro Ho, was riding with a fellow co-worker, James Tate, in Tate’s car when Tate lost control of the vehicle and caused it to overturn.  Ho died from injuries sustained in the accident shortly after.  Ho’s estate brought suit against ITS and Tate, alleging negligent hiring and retention.  ITS filed a claim with the Virginia Workers’ Compensation Commission, arguing that the accident arose out of Ho’s employment because Ho was on his way to a job site when the accident occurred.  After a series of appeals, it was found that the injury was a compensable injury.  ITS then filed a plea in bar in the civil suit.

In its opinion, the court began by stating that “[a] civil action is not barred if the Commission had no jurisdiction to hear the claim.”  The court looked to the language of the workers’ compensation statute as support for its conclusion that Ho did not meet the filing requirements under the statute as he had no dependents, was not a minor, and was not incapacitated or injured, and therefore his estate could not file a claim on his behalf.  The court further found that ITS could not file a claim on Ho’s behalf because the statute only allows for this in the event of a disagreement between the claimant and the employer.  Citing the Indiana statute (which formed the basis for the Virginia statue), the court concluded that an employee with no dependants is not covered by workers’ compensation, and therefore the Commission lacked jurisdiction over the claim.  The court then found that that the Commission’s decision was not binding on the court because the Commission lacked jurisdiction over the claim. 

Finally, the court addressed the question of whether an employer can use the statute to shield itself from liability, a potential consequence of ITS filing the workers’ compensation claim with the Commission.  The court stated that to allow ITS to escape liability would contravene the purpose behind the workers’ compensation statute, and overruled the plea in bar to allow the suit to proceed.

In 2005, Lespia King, a deputy in the sheriff’s office, sued Sheriff George McMillan in his official capacity for sexual harassment under Title VII, and in his individual capacity for state law battery.  King alleged that McMillan had sexual harassed her during her employment with him.  While the suit was still pending, McMillan lost a reelection to Octavia Johnson, who then replaced him as sheriff.  The district court proceeded to substitute Johnson in her official capacity as the defendant in the Title VII claim.  After a trial, the jury found in favor of King on both counts.

On appeal to the Fourth Circuit, Johnson argued that the district court erred in substituting her as a defendant in her official capacity under Federal Rule of Civil Procedure 25(d)—which provides that an “action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending”—because under Virginia law, once she became sheriff, it was the beginning of an entirely new office.  That is, Johnson argued that each sheriff under Virginia law is a “singular entity” who is “legally independent of predecessors and successors,” and thus she could not be substituted in her official capacity and held liable for her predecessor’s conduct during his term in office. 

The court of appeals rejected Johnson’s argument on the grounds that the Supremacy Clause does not allow state law to override a Title VII claim brought against a state official in his official capacity.  The court stated that if it accepted Johnson’s argument, it would essentially allow states to draft laws in such a way as to limit the liability of state and local officials under federal law.  The court went on to say that “[r]egardless of whether Johnson reads Virginia law correctly with respect to the circumscribed authority of an individual sheriff, Virginia law cannot override Title VII employer liability.”  Nevertheless, the court clarified that Rule 25(d) does not make Johnson personally liable for any misconduct that occurred during McMillan’s term in office; it merely allows the official capacity claim to continue unabated.

The court of appeals also addressed McMillan’s and Johnson’s arguments that the district court erred in admitting the testimony of other employees who alleged they were harassed by McMillan.  The court stated that such evidence is often relevant to a hostile work environment claim, and affirmed the lower court’s ruling that the evidence was relevant as to two elements of King’s hostile work environment claim:  (1) whether the conduct was because of King’s sex; and (2) whether the conduct was sufficiently severe or pervasive.  The court also affirmed the lower court’s ruling that the probative value of the evidence outweighed the risk of unfair prejudice.

Contributed by Claudia L. Guzman

IL – Merchant State Bank agreed to pay $50,000 to settle a disability suit brought on behalf of a former employee who was prevented from returning to work after he underwent cancer treatment.

NV – A Las Vegas car dealership will pay $110,000 to settle a sexual harassment suit brought on behalf of a group of female employees who alleged they were harassed and sexually assaulted by co-workers and managers.

PA – Vanguard Group, Inc., agreed to a $300,000 settlement in a racial bias suit brought on behalf of an African American job applicant who was denied a position because of her race.

AZ – Two property management firms agreed to a $30,000 settlement in a disability discrimination suit brought on behalf of a disabled employee who alleged he was fired because of his disability and denied a reasonable accommodation.

WA – A debt collection agency will pay $55,000 to settle a disability discrimination suit brought on behalf of a job applicant who was denied a position because she was blind.

CO – A car dealership agreed to pay $1.5 million to settle a sex and age discrimination suit brought on behalf of a group of female employees who were subject to harassment and a group of male employees who were terminated because of their age.

TX – Saks Fifth Avenue will pay $170,000 to settle a disability discrimination suit brought on behalf of a former employee who alleged she was fired because of her disability.

AL – A restaurant agreed to pay $16,500 to settle a pregnancy discrimination suit brought on behalf of a female employee who alleged she was not allowed to return to work following her pregnancy.

OH – A car dealership will pay $85,000 to settle a class action suit brought on behalf of a group of African American employees who alleged they were subject to a racially hostile work environment and retaliation.

TX – A cap manufacturing company agreed to a $21,500 settlement in a sexual harassment and constructive discharge suit brought on behalf of a female employee who was subject to harassment in the workplace.

GA – A car dealership will pay $140,000 to settle a race discrimination suit brought on behalf of an African American employee who was subject to a racially hostile work environment.

IL – A medical device supplier agreed to pay $250,000 to settle a race discrimination suit brought on behalf of an employee who was terminated because of his race.  The company also agreed to reinstate the employee as part of the settlement.

NY – The Village of Mineola agreed to pay $237,072 to settle a class action suit brought on behalf of a group of firefighters who alleged they were discriminated against because of their age by being denied accrual of service credits toward their retirement benefits.

TN – Memphis Goodwill Industries, Inc., will pay $105,000 to settle a race discrimination and retaliation suit brought on behalf of an African American employee who was fired after complaining of discrimination in the workplace.

NJ – A non-profit community development organization agreed to pay $25,000 to settle a religious discrimination and retaliation suit brought on behalf of a former employee who was fired after he refused to contribute money to a cause that conflicted with his religious beliefs.

GA – U.S. Security Associates, Inc., agreed to pay $79,880 to settle a pregnancy discrimination and retaliation suit brought on behalf of a former employee who was subjected to discriminatory treatment because of her pregnancy and then fired after complaining about it.

IL – An automobile parts manufacturer will pay $428,500 to settle a sexual harassment and retaliation suit brought on behalf of a class of female employees who were subject to harassment in the workplace and retaliation for complaining about it.

GA – An assisted living facility agreed to pay $43,000 to settle a religious discrimination suit brought on behalf of a former employee who was fired for wearing a head scarf in accordance with her religious beliefs. 

MO – EaglePicher Technologies, LLC, has agreed to pay over $35,000 to settle a retaliation suit brought on behalf of a former employee who was fired after she complained of sex discrimination.

NY – A community hospital agreed to settle a disability discrimination suit for $142,500 that was brought on behalf of a former employee who alleged she was denied a reasonable accommodation for her diabetic condition.

AZ – Two Phoenix car dealerships will pay $500,000 to settle a hostile work environment suit brought on behalf of five former employees who alleged they were constructively discharged after they complained of the harassment.

SC – A non-profit disability services organization agreed to pay $80,000 to settle an age discrimination suit brought on behalf of a 73-year-old man who alleged he was denied a position because of his age.

TX – A group of telemarketing companies will pay $37,000 to settle a sexual harassment suit brought on behalf of two female employees who alleged they were harassed by the company’s human resources managers.

OH – Bahama Breeze, a national restaurant chain, has agreed to pay $1.26 million to settle a class action suit brought on behalf of a group of African American employees who alleged they were subject to repeated racial harassment by management.

TX – The City of North Richland Hills will pay $75,000 to settle an age discrimination suit brought on behalf of a former employee who alleged he was subject to harassment that eventually forced him to resign.

CO – Albertsons, LLC, a grocery chain, agreed to an $8.9 million settlement in a race, color, and national origin discrimination and retaliation suit brought on behalf of a group of former and current employees who were subject to harassment and discriminatory treatment.

TX – Economy Finance agreed to pay $65,000 to settle a disability discrimination suit brought on behalf of an employee who was fired after refusing to take a medical exam that was unrelated to her ability to perform her job.

MO – Allstate Insurance will pay $4.5 million in settlement of a class action suit alleging age bias during a company reorganization.

IN – A communications and marketing company agreed to pay $60,000 to settle a race and disability discrimination suit brought on behalf of a former employee who was fired after being sent to take a drug screening by the company.

IL – Aaron Rents, Inc., has agreed to remedial relief, including manager training, in settlement of a sexual harassment suit brought on behalf of a female employee who was harassed and sexually assault by a manager. 

MN – An airline company entered into a consent decree providing payment of $130,000 to five employees who alleged they were subject to religious discrimination by being forced to work on certain days of the week.

MI – A rehabilitation center agreed to pay $15,000 to settle a religious discrimination suit brought on behalf of an employee who was refused a reasonable accommodation for her religious beliefs which required her to wear a certain religious object on her person.

TN – Whirlpool Corporation has agreed to pay over $1 million to settle a race and sex discrimination suit brought on behalf of a female employee who alleged she was harassed and then physically assaulted by a male coworker.

CO – Outback Steakhouse agreed to a $19 million settlement in a class action suit alleging sex discrimination against female employees who were denied promotions and certain job assignments.  The settlement also requires the company to hire a human resources executive and implement an online application system for management positions.

IN – A construction company agreed to pay $31,000 to settle a retaliation suit brought on behalf of a former employee who alleged he was no longer given work after he filed a discrimination charge against a close acquaintance of the company.

TN – A waste processing company will pay $650,000 to settle a race discrimination and retaliation suit brought on behalf of a group of African American employees who alleged they were subject to racial harassment and retaliated against for complaining about it.

Awards in employment law claims – A study shows that the median jury award for employment law claims was $326,000 in 2008, which is an increase of about 60%.  The median settlement amount was reported at $90,000.  The same study reports that retaliation claims were awarded the most money, and age and disability discrimination claims received higher jury awards than sex and race discrimination claims.

Summary of EEOC claims statistics – This article provides statistics on the increase in EEOC charges from 2007 to 2008, as well as the total amount of money collected by the agency as a result of the charges.

MD – In Doyle v. Rite Aid Corp., a Maryland federal district court granted summary judgment for the employer on a disability discrimination claim because the employee had failed to show that she could perform the essential functions of her job as store manager with or without a reasonable accommodation.  The court noted that the employer was not required to hire additional staff to perform the essential functions of the disabled employee’s job.

TN – The University of Tennessee will pay $350,000 to settle a reverse race discrimination suit brought by three former university police officers.

IL – The Chicago Commission on Human Relations found in favor of a former employee who was terminated after she called in sick to care for her daughter.  The Commission awarded her $215,000 in damages plus attorneys’ fees.

FL – A federal jury returned a verdict in favor of the Clermont Police Department and the city in a race discrimination suit brought by a police officer who claimed he was denied a promotion and harassed because of his race.

WI – In St. Jean v. Board of Regents of the University of Wisconsin, a federal district court granted summary judgment in favor of the university in a national origin and race discrimination suit brought by a former professor after her contract was not renewed.  The court found that the plaintiff had failed to establish a prima facie case of discrimination because she could not show that she was performing her job satisfactorily.

NJ – A jury awarded $500,000 in punitive damages and $150,000 in lost wages and emotional distress damages to a former employee who was fired after she complained of sexual harassment by a co-worker.

OH – A jury found in favor of a school district in a harassment and retaliation suit brought by a former bus driver who alleged she was fired because of a previous wrongful termination suit she brought against the district.

Loparex LLC owns multiple production facilities scattered across the country where it manufactures polycoated and silicone-coated papers and films.  Among its locations, Loparex owns and operates a small manufacturing plant in Hammond, Wisconsin.  When a handful of the 200 employees working at the plant began to drum up interest in unionizing the workforce, Loparex pushed back by placing a number of restrictions on organizing activity at the workplace.  Then, when the company announced several controversial employment policies a small group of employees renewed their efforts to unionize the plant..

Loparex imposed several limitations on union organizing at work. After union supporters posted material on company bulletin boards in March 2007, Loparex issued a policy statement that required employees to obtain approval before placing any material on the boards. A few months later, several employees attempted to distribute prounion flyers in Loparex’s parking lot, but they were stopped by company officials.  Around the same time, employees passed out union buttons in the plant and left some of them near a time clock for other employees to pick up.  When company officials learned of this activity, they quickly called a meeting and told the union advocates that they had violated company policy.  Management also discouraged employees from talking about the union during working hours.  Then, in June or July 2007, Loparex informed all of the shift leaders working at the Hammond plant that they qualified as supervisors under the NLRA and were thus prohibited from participating in union activities.  Following these events, Teamsters Local 662 filed three separate unfair labor practice charges. 

Loparex’s actions were brought to the attention of the NLRB, which concluded that Loparex had engaged in a number of unfair labor practices in violation of the National Labor Relations Act,§ 8(a)(1), 29 U.S.C. § 158(a)(1). The Board ordered Loparex to cease and desist and to take several affirmative steps to remedy its past violations. The ALJ, in November 2008 found that Loparex had violated the Act in several ways:  (1) by promulgating its bulletin board policy because of antiunion animus; (2) by announcing unlawfully broad constraints on employee communications relating to unionization; and (3) by treating shift leaders as though they were supervisors under the Act.  Loparex eventually petitioned the court to set aside the Board’s decision. 

Discriminatory interference with union organizers’ access to bulletin boards is forbidden.  Loparex generally permitted employees to use bulletin boards for a variety of non-work purposes but shut off access in response to union organizing activity.  Accorining to the Court, the critical question was whether the employer is discriminating against union messages, or if it has a neutral policy of permitting only certain kinds of postings (for example, those related directly to work rules). Discriminatory interference with union organizers’ access to bulletin boards is forbidden.  Here the ALJ and Court of Appeals found that while the policy itself was facially neutral, Loperex failed to provide evidence that it was not implemented in response to the organizing efforts.  The same thinking led the Court to find that the constraints on employee communications were unlawful.  By purporting to restrict distribution in non-work areas, during break times, Loparex stepped over the line.  “[A] rule is presumptively invalid if it prohibits distribution on the employees’ own time.”

Finally, Loparex, in the midst of the union organizing activities, decided to re-classify its shift leaders as “supervisors” within the meaning of the Act and thus prohibited from engaging in union activities.  To prove that employees qualify as statutory supervisors, an employer has the burden to prove: “(1) [the employees] hold the authority to engage in any 1 of the 12 listed supervisory functions, (2) their ‘exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment,’ and (3) their authority is held ‘in the interest of the employer.”  Loparex argued that shift leaders qualified as supervisors because they had the authority to responsibly direct employees and assign them work.  The Court did not agree.  The shift leaders’ method of assignment was routine and clerical in nature; therefore, the Board acted within its authority when it concluded that Loparex’s shift leaders did not exercise the requisite independent judgment to qualify as supervisors under the Act.

Loparex v. NLRB, Case Nos. 09-2187, 09-2289, U.S. Court of Appeals for the Seventh Circuit, December 31, 2009.

Contributed by Michael Wilson Stoker

TN (and here) — Tennessee jury awards woman $1.5 million for her termination after cooperation with sexual harassment investigation.

FL — County commissioners vote to sue fellow member to recoup $425,000 in fees spent on defending sexual harassment lawsuit.

SD — Ex-client sues law firm in attempt to recover funds lost as result of sexual harassment lawsuit.

AK – A federal jury awarded $637,934 in a race discrimination suit to a police officer who was fired for alleged misuse of city property.

MO – A jury awarded $362,000 to a former school employee who alleged he was retaliated against by the school superintendent.

NY – A federal judge found that the city had intentionally discriminated against African-American firefighters in its continued use of an entrance exam that had a discriminatory impact.

TN – A jury awarded over $500,000 in an age discrimination suit brought by two former police officers who were fired and then replaced by younger employees.

OH – An appellate court upheld a $500,000 jury verdict against a former employee who breached a noncompete agreement with his former employer by starting a competing business after resigning.

TX – A federal jury found in favor of the hospital employer in a race and gender discrimination suit brought by a former employee who alleged she was denied promotions and terminated for discriminatory reasons.

Business-to-business sex harassment?  In New Jersey, apparently yes.  Article here.

Black-on-black lawsuit for “acting white”?   In South Carolina, apparently yes.  Post here.

Does sex-specific profanity not targeted at an employee give that person an actionable harassment claim?  In the 11th Circuit, yes.  Law.com article here.  Blog posts here and here.

Receptionist who lacked the “Midwestern girl look” and was not “pretty enough” has case sent back for trial by the 8th Circuit.  Blog post here.

President Obama signed the Lilly Ledbetter Fair Pay Act into law in January 2009, his first act of legislation as President.  The Act’s effective date is retroactive to claims pending as of May 28, 2007.  The Act specifically overturns a U.S. Supreme Court decision that held that for purposes of the statute of limitations, a Title VII violation occurs upon institution of the discriminatory compensation policy rather than each time an employee is paid.  Now, under the Act, an unlawful employment practice occurs with respect to discrimination in compensation not only when the policy is adopted, but also when an employee is affected by application of the discriminatory compensation decision, “including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision.”  The Act not only applies to Title VII of the Civil Rights Act of 1964, but also to the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act of 1973.  

For discrimination in compensation based on a protected class under Title VII (such as gender, race, national origin, etc.), the Act allows recovery of up to two years’ back pay in addition to other remedies available under Title VII, such as compensatory and punitive damages.

It will remain to be seen exactly how the courts will interpret and apply the Act’s provisions.  Due to the Act’s broad language and intent, however, it is likely that courts will opt in favor of a broad interpretation.  At least one circuit has already given a broad interpretation to the term “compensation decision.”  In Mikula v. Allegheny, the Third Circuit determined that an employer’s failure to respond to an employee’s request for a raise was a “compensation decision” because it was equivalent to a denial of such a request.  The court found that the employee was adversely affected by that decision each time she received a paycheck, and thus her claim was timely as to each paycheck she received within 300 days of the filing of her EEOC charge. 

In addition, since the Act refers to “benefits” as well as wages, the Act could be interpreted to apply to employee benefits other than wages (for example pension benefits), so long as they are tied to the discriminatory compensation scheme.  The U.S. Supreme Court has also recently granted review in a Seventh Circuit case that will determine whether the Act applies to disparate impact claims. 

The potential far reach of the Act has obvious implications for employers, who may now be liable for policies that were enacted years before an employee’s claim is brought.  Employers are well-advised to review their compensation policies to ensure that they are neutral on their face as well as in application.  Compensation decisions should be documented as well.

In Gross v. FBL Financial Services, Inc., the Supreme Court held that the mixed motive standard used to prove intentional discrimination in Title VII claims does not apply to claims brought under the ADEA.  In that case, the employee sued his employer, claiming that he was demoted due to his age in violation of the ADEA.  The trial court held that the employee had to prove by a preponderance of the evidence that age was “a motivating factor” in the employment action.  On appeal, the Eight Circuit reversed, and the Supreme Court affirmed.  Because the ADEA provides that it is unlawful to make certain employment decisions “because of” an individual’s age, the Court held that “[a] plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.”  The Court instructed that the burden of persuasion never shifts to the employer to show that it would have made the same decision regardless of age, even in the face of evidence that age was a motivating factor in the decision.  The Court found it significant that unlike Title VII, the ADEA has never been amended to provide that a plaintiff may prevail by showing that age was a motivating factor in the challenged employment decision.

The practical effect of this decision is that it will now be more difficult for age discrimination plaintiffs to withstand a pre-trial motion for summary judgment by the employer.  For their part, employers should take care to document all disciplinary actions carefully and accurately and maintain complete personnel files on every employee.

Age discrimination claims will not disappear, however.  Applying Gross, in November 2009, a federal jury in Pennsylvania awarded over $6.2 million to two former employees who claimed they were laid-off because of their age.  The jury found that the company had engaged in “willful” discrimination, which automatically doubled each employee’s back pay award.

On November 21, 2009, the employment-related provisions of the Genetic Information Nondiscrimination Act, or GINA, went into effect.  GINA applies to all employers with 15 or more employees, and prohibits both employers and health insurers from using genetic information to discriminate with regards to the terms and conditions of employment or health care coverage.  GINA also contains a retaliation provision that prohibits discrimination against individuals for opposing an unlawful genetic discrimination practice or for testifying, assisting or participating in a related investigation.  The Act does not permit disparate impact claims, however.

Employers are also prohibited from acquiring genetic information from their employees subject to a few limited exceptions.  These include, for example, use of the information as part of a wellness program with the employee’s written consent, as part of the certification process under the Family and Medical Leave Act and other leave statutes, or for use in monitoring the effects of toxins in the workplace.  Employers are allowed to maintain genetic information on their employees so long as the information is kept separately from other employee information and is kept confidential (subject to a few limited exceptions).

Under GINA, “genetic information” is defined as information regarding the employee’s genetic tests, the tests of family members, or “the manifestation of a disease or disorder in family members.”  The term “family member” includes dependents and any first, second, third, or fourth-degree relatives, which would include great-great-grandparents and first cousins once removed.

GINA’s broad definitions of “genetic information” and “family member” are a potential source of liability for employers because they could encompass the medical histories of a large number of individuals related to each employee.  This poses a serious problem for employers who maintain medical history information in their employee records and are unaware of the consequences of maintaining such information.  To that end, GINA provides a safe harbor for employers that inadvertently acquire family history information, so long as the employer does not use the information to discriminate with regards to terms and conditions of employment.  Further, GINA does not prohibit the “use, acquisition, or disclosure of medical information that is not genetic information about a manifested disease, disorder, or pathological condition that has or may have a genetic basis.”

Even with these safe harbors in place, GINA’s broad scope still poses a significant challenge for employers.  Employers should locate any employee family medical histories they have on file and separate them from other employee records, and also take time to ensure that any policies and procedures that elicit medical history from employees are in compliance with GINA.  GINA’s health care provisions, which took effect last May for individual plans and on December 7 for group health insurers, also may require some changes by employers.  Employers are advised to carefully evaluate the questions they ask their employees on health risk questionnaires for determining coverage eligibility. 

As a side note, Virginia law already prohibits employers from requiring genetic testing as a condition of employment, or discriminating with regards to the terms and conditions of employment on the basis of a genetic characteristic regardless of how the information was obtained.  (VA Code § 40.1-28.7:1)