A federal court in Kentucky has determined that the Equal Employment
Opportunity Commission (EEOC) is not entitled to information about the
medical examinations of Nestlé Prepared Foods employees in relation to a
claim by one former employee that he was fired due to “genetic information”
discrimination. EEOC v. Nestlé Prepared Foods, No. 11-359 (E.D. Ky., decided May 23, 2012). So ruling, the court rejected in part a magistrate judge’s recommended disposition and denied EEOC’s motion for
enforcement of a subpoena.

According to the court, the information sought was irrelevant because there
was no evidence that any other employee had alleged violations of the
Genetic Information Non-Discrimination Act (GINA), 42 U.S.C. § 2000 0ff-1.
While acknowledging that EEOC ordinarily “has broad access to evidence
that is relevant to a charge being investigated,” the court was “not persuaded
that it has free reign to conduct a broad, company-wide investigation based
upon a single allegation of an isolated act of discrimination.” In this case, the
former employee had apparently been terminated shortly after undergoing
an employer-requested fitness-for-duty evaluation during which he “provided
information concerning his family history of certain medical conditions.”

Based on his allegation of “genetic information” discrimination, EEOC directed
Nestlé to provide documents regarding each physician to whom the company
had referred employees and detailed employment information about each
employee who had submitted to medical examinations, such as reasons for
not hiring or for terminating. Responding to questions about the materials’
relevance, counsel evidently responded that EEOC did not know whether
systemic discrimination had occurred at Nestlé. “At this point we don’t know.
We won’t know that until we have the information and then we can determine
whether or not that’s the case.”

In the court’s view, not every charge of discrimination justifies an investigation
of the employer’s facility-wide employment practices. To conclude
otherwise would eviscerate the relevance requirement and condone fishing
expeditions, against which the Sixth Circuit has warned. Here, the only alleged
GINA violation arose from [the employee’s] EEOC charge in which he checked
the box for ‘genetic information.’” While the court overturned the magistrate’s
ruling on relevance, it left undisturbed a finding that Nestlé had notice of its
obligations under GINA.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.