Employment Discrimination Based on Genetic Information Can Lead to Employer Liability

By R. Joseph Leibovich
Shuttleworth PLLC
(901) 328-8269
jleibovich@swlawpllc.com

I. GINA

Questions about family medical histories could cause employers serious problems beginning later this month. The Genetic Information Nondiscrimination Act of 2008 (GINA) was passed by congress to prohibit discrimination in health insurance and employment on the basis of genetic information. The portion of GINA applying to employers takes effect on November 21, 2009.

For employers with 15 or more employees, GINA prohibits discrimination in hiring, firing or other terms or conditions of employment based on genetic information related to an employee, and it further prohibits requesting, requiring, or purchasing genetic information related to an employee or family member of an employee.

The term “genetic information” includes an individual’s genetic tests or such tests of a family member as well as the manifestation of a disease or disorder by an employee or an employee’s family members. “Genetic information” does not include age or gender. Genetic testing can include analysis of such things as an individual’s DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or changes to one’s chromosomes.

The anti-discrimination portion of GINA has no exceptions as some other laws do. The EEOC takes the position that GINA is to be strictly enforced.

In addition to anti-discrimination provisions, GINA has significant confidentiality provisions related to employers. While GINA prohibits most acquisition of genetic information, this prohibition is not absolute. For example, an employer may inadvertently obtain such information, a wellness program may collect such information (with restrictions), it may be obtained when necessary to certify Family and Medical Leave Act leave, or through commercially and publicly available sources such as magazines, newspapers, and books. Genetic information may also be obtained with certain safeguards when genetic monitoring is used to measure the effect of toxic substances in the workplace or where employees are involved in DNA analysis for law enforcement purposes.

When an employer does obtain genetic information, that information must be treated confidentially, similar to how medical records are treated under the Americans With Disabilities Act (ADA). Such records must be kept in separate medical files, and can only be disclosed under certain circumstances.

The EEOC takes the position that harassment against individuals based on genetic information is prohibited by GINA, even though there is no such language in the statute. However, the statute does specifically state that there is no disparate impact cause of action under GINA. However, under the terms of the law, that issue will be revisited by a Commission in six years.

Violations under GINA can lead to a lawsuit in which the alleged victim can seek all the remedies he or she could seek under Title VII of the Civil Rights Act of 1964, as amended, including reinstatement, hiring, promotion, back pay, injunctive relief, pecuniary and compensatory and punitive damages, and attorneys’ fees and costs. Title VII’s cap on compensatory and punitive damages also apply under GINA.

The EEOC has published a new anti-discrimination poster incorporating GINA as well as recent changes in the ADA. Employers can obtain these new posters for free here.

II. WHAT DOES THIS MEAN TO EMPLOYERS?

Covered employers should print out the new posters and post them appropriately. Employers should also be very careful to avoid discrimination against individuals based on genetic factors, and should take steps to avoid improperly obtaining and disclosing such information. As always, if an employer is faced with an issue of whether or not to disclose such information, that employer should seek specific legal advice.

It is also worth noting that GINA does not replace or overturn prior laws, such as the ADA or the FMLA.

The articles published in this blog are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice.