GINA: Protecting Genetic Information
The Genetic Information Nondiscrimination Act of 2008 (GINA) was signed into law in May 2008, and became effective in November 2009. Title II of GINA prohibits employers, employment agencies and unions from discriminating against applicants and employees based on genetic tests or genetic information.
In enacting GINA, Congress recognized that progress in genetic testing and studies may lead to the development of better therapies that are more effective against disease or have fewer side effects than current treatments. However, Congress also recognizes that employees fear that they may be at risk of losing their employment, or access to health coverage, if employers or insurers have access to their genetic information. GINA was enacted to address these growing concerns.
“Genetic Information” Defined
GINA defines “genetic information” as (1) an individual’s own genetic tests; (2) the genetic tests of a family member; and (3) the manifestation of a disease or disorder in family members. Notably, this definition does not include medical information about an employee’s manifested disease or disorder. Also, information about the age or sex of any individual is specifically excluded from the definition of “genetic information.”
Proposed regulations further clarify that a test for the presence of alcohol or drugs is not a genetic test; however, a test to determine whether an individual has a genetic predisposition for alcoholism or drug use is a genetic test.
Employers May Not Discriminate Based on Genetic Information or Retaliate
Specifically, it is unlawful for an employer to discriminate against an employee or applicant on the basis of genetic information with regard to hiring, discharge, compensation, training, and other terms, conditions or privileges of employment. Similar to Title VII, anti-retaliation provisions protect an employee who files a Charge of Discrimination or otherwise complains or participates in an investigation or proceeding regarding violations of GINA.
Employers May Not Request or Obtain Genetic Information
An employer’s ability to request, require, or purchase genetic information with respect to an employee or family member of an employee is prohibited except in very limited and specifically defined instances, including:
Inadvertent Disclosure: where an employer “inadvertently” requests or requires family medical history of the employee or family member of the employee. The EEOC cautions employers that an overly broad request for medical information will not be considered an “inadvertent” disclosure.
Examples of the “inadvertent” disclosure exception would include overhearing a conversation between employees, receiving unsolicited information from the employee, and obtaining genetic information as part of a lawful request for leave or accommodation under the Americans with Disabilities Act (ADA), similar state law, or other leave request.