Science leads the way to new federal antidiscrimination law.
In 2008 President Bush signed into law the Genetic Information Nondiscrimination Act (GINA), which prohibits employers and insurance companies from discriminating against individuals on the basis of genetic information. “Genetic information” in this case includes information about (1) an individual’s genetic tests, (2) genetic tests involving the individual’s family members, and (3) the manifestation of a disease or disorder among the individual’s family members. Excluded is medical information about an employee’s manifested disease or disorder.
Touted as the “first civil rights bill of the new century of life sciences”, GINA was adopted in response to concerns that fear of discrimination was preventing members of the general public from taking full advantage of genetic testing that could result in preventative medical treatments. Although detractors argued that GINA was a wholly unnecessary remedy in search of a problem, Congress disagreed but nevertheless added safeguards to protect employers from frivolous lawsuits.
Under GINA, insurance companies may no longer restrict enrollment or adjust premiums based on genetic information. GINA also prevents insurance companies from requesting or requiring individuals to take genetic tests. With respect to workplace discrimination, GINA incorporates many aspects of the Civil Rights Act of 1964 (Title VII) – effectively granting genetic information the same protected status as race and gender. Specifically, GINA prohibits employers from using genetic information to discriminate against employees or applicants in the terms and conditions of employment. GINA also applies to employment agencies, labor organizations, and joint labor-management committees. However, GINA expressly provides that employers cannot be sued for GINA violations committed by their insurance providers.
GINA also bans employers from collecting or maintaining genetic information relating to employees or their family members, except where: (1) the employer inadvertently collects the information; (2) the employer acquires genetic information in connection with a wellness program and certain privacy precautions are taken; (3) the employer requires family medical history in compliance with family and medical leave law certification provisions; (4) the employer acquires the information through publicly available documents containing family medical history information; (5) the employer conducts genetic monitoring of biological effects of toxic substances in the workplace and certain privacy precautions are taken; or (6) the employer provides DNA analysis services for law enforcement and the information is necessary to rule out employee sample contamination. Any genetic information collected in connection with these approved circumstances must be maintained in the same type of separate confidential files required for medical information under the Americans with Disabilities Act (ADA). Genetic information may not be disclosed without employee consent except in very limited circumstances.
GINA also adopts Title VII enforcement procedures and remedies. Accordingly, an employee claiming violation of GINA may, after filing a claim with the Equal Employment Opportunity Commission (EEOC) and receiving a right-to-sue letter, bring a civil action against his or her employer for the full spectrum of remedies permitted in federal civil rights claims (such as reinstatement and back pay, compensatory damages, punitive damages, costs, and attorneys’ fees). As currently drafted, only intentional discrimination claims may be brought under GINA. However, the law authorizes a commission to evaluate in the future whether GINA should be expanded to permit “disparate impact” claims as well. (Disparate impact claims involve employment practices or decisions that are facially nondiscriminatory, but adversely affect members of a protected class.)
Employers should not delay in examining their current practices regarding use of genetic information as many states also have laws prohibiting genetic discrimination and the EEOC has taken the position that genetic information discrimination can be actionable under the ADA.
Emma Luevano is a partner at Mitchell Silberberg & Knupp LLP and represents management in a variety of labor and employment matters, including sexual harassment and other forms of discrimination, public policy violations, wrongful termination, wage and hour issues, and retaliation.