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Employment & The Law - Statutory Spotlight: The Anti-Discrimination Provisions of the Genetic Information Nondiscrimination Act (“GINA”)
November 17, 2008
Christina H. Bost Seaton
Norman A. Jenkins
In May, President Bush signed into law the Genetic Information Nondiscrimination Act (“GINA”), which is designed to help keep individuals’ genetic information private so that findings of “bad” genes could not be used to deny individuals health insurance or to terminate their employment.
There is a common misperception that only group health plans need be concerned about GINA. Indeed, Title I of GINA deals with health insurance, expanding the nondiscrimination requirements of The Health Insurance Portability and Accountability Act (also known as HIPAA), so that an individual’s genetic information cannot be used to deny that individual health insurance. However, GINA has provisions that directly affect employers in making hiring, firing, and other employment decisions. More relevant for employers, Title II of GINA creates a new anti-discrimination law that prohibits discrimination in employment on the basis of “genetic information.”
Non Discrimination Provisions
GINA defines “genetic information” to mean “(i) [an] individual’s genetic tests; (ii) the genetic tests of family members of such individual; and (iii) the manifestation of disease or disorder in family members of [an] individual.” GINA expressly adopts definitions for terms like “employee,” “employer,” “employment agency”, and “labor organization” from Title VII of the Civil Rights Act of 1964 (“Title VII”). Because GINA also borrows the remedial and enforcement structure from Title VII, discrimination charges brought pursuant to GINA must begin at the Equal Employment Opportunity Commission before they can be filed in federal court.
Title II of GINA prohibits employers from (1) discriminating based upon genetic information; (2) acquiring genetic information, except in certain specific exceptions (such as monitoring the effects of workplace exposure to hazardous materials); and, should an employer acquire an employee’s genetic information, (3) using or disclosing that genetic information. Genetic information thus cannot be used in making decisions regarding hiring, firing, promotion, etc. Covered entities also cannot retaliate against individuals who assert their rights under GINA or provide disparate treatment to their employees based upon their genetic information. Unlike Title VII, however, GINA does not provide for a disparate impact cause of action.
Although many states have antidiscrimination laws similar to GINA, so far, there have not been many genetic discrimination cases. Despite this, as the number of individuals choosing to undergo genetic testing as part of a preventative health care regimen increases, employers may be faced with antidiscrimination cases brought under GINA. For instance, if an employee’s test results determining that she had the BRCA1 gene (which indicates a risk of having an aggressive form of breast cancer) were accidentally faxed by her doctor to the wrong person, and that employee later was terminated, she could now claim discrimination based upon genetic information.
What Should Employers Do?
• Employers who possess genetic information, either because they have acquired it pursuant to a specific exception to GINA, or because they have acquired that information by accident, as in the BRCA1 example above, must ensure that the genetic information is kept confidential.
• Employers should review their policies for protecting confidential medical information to ensure that they meet the heightened requirements in GINA.
• Employers should revise their nondiscrimination policies to ensure that they provide that discrimination on the basis of genetic information is prohibited.
• Because genetic information is defined to include an individual’s family member’s health information, employers should be careful not to inadvertently request the individual’s family medical history.