Epstein Becker Green
(04/06/2012) Amy J. Traub; Anna A. Cohen; Jennifer A. Goldman

Effective April 3, the U.S. Equal Employment Opportunity Commission extended its record-keeping requirements to employers covered by Title II of the Genetic Information Nondiscrimination Act. GINA applies to employers with 15 or more employees, and Title II seeks to protect job applicants, current and former employees, labor union members, apprentices, and trainees from discrimination based on their genetic information.

When a charge of discrimination has been filed with the EEOC, an employer must preserve all employee records relevant to the charge until “final disposition” of the charge. If a charge is not resolved after investigation and the charging party has received a notice of right to sue, “final disposition” will be considered to be the date of expiration of a 90-day statutory period within which the applicant or employee may bring suit. However, if the applicant, employee, or the EEOC files a lawsuit, the date on which the litigation is terminated is considered the final disposition. Records subject to this requirement may include personnel or employment records, such as application forms or test papers, of the charging party and of all other employees or applicants holding positions similar to the one held or sought by the charging party.