From Page 1: GINA and Discrimination Law
GINA applies to all employers with 15 or more employees and is modeled after Title VII of the Civil Rights Act of 1964 ("Title VII"). In addition, employment agencies, labor organizations and training programs (such as apprenticeship programs) are subject to the requirements of GINA.
An employer may not request, require or purchase genetic information of an employee or the family member of an employee (defined as individuals within 4 degrees of relationship). Genetic information is defined as an employee's genetic test, a family member's genetic test, a family history of disease, the information about a fetus, and a legally held embryo. Genetic information is considered confidential medical information under the ADA and the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and generally may not be disclosed. There are exceptions to these general prohibitions.
An exception to GINA allows employers to obtain the following genetic information: (1) a family history needed to comply with FMLA certification requirements; (2) as part of a wellness program in which genetic information is made available only to the family member and the physician; (3) genetic monitoring of the biological effects of toxic substances with written notice to the employee, voluntary authorization from the employee, the disclosure of test results, and disclosure to employers is limited to aggregate terms to protect the identity of the employees tested; (4) an employer's inadvertent request for information (water cooler talk); and (5) information that is publicly available through newspapers, books, etc.
An employer does not violate GINA by disclosing genetic information limited to the following: (1) an employee (or family member defined under the Act) upon written request; (2) in accordance with a court order, but with notice to the employee; (3) to comply with FMLA certification requirements; (4) to government officials investigating compliance with GINA; and (5) to federal or state public health agencies concerning contagious diseases that present a health hazard.
Generally, employers may not use genetic information for employment decisions such as hiring, firing, promotions, or to otherwise discriminate against an applicant or employee in terms and conditions of employment. Genetic testing includes the analysis of human DNA, RNA, chromosomes, proteins or metabolites that detect genetic changes or abnormalities.
GINA applies the remedies and damages consistent with those described in Title VII. Accordingly, employees may be entitled to injunctive relief, reinstatement or front pay, back pay, lost benefits and compensatory damages up to the statutory caps, and costs (including attorney's fees). See 42 U.S.C. §1981a and §2000e-5(g). Enforcement is handled through the Equal Employment Opportunity Commission ("EEOC"), and therefore, complaints of genetic discrimination must be initiated by filing a charge of discrimination. The Act specifically excludes disparate impact discrimination claims at the current time, but left the door open for recognition of these types of claims at a later date.
GINA is designed to work in conjunction with a variety of other laws, including HIPAA, the ADA and the Occupation Safety & Health Administration Act ("OSHA"). GINA will alter these other statutory laws to some extent. Most notable are the following: under HIPAA genetic information is considered medical information entitled to the same privacy protections; employers conducting medical examinations allowed under the ADA will no longer be able to inquire about family medical history; and, testing permitted under OSHA will need to meet GINA requirements with notice to employees tested and making test results available to employees.
In the 21st century we can expect to see rapid technological advancement, especially in the field of genetics. GINA is an attempt to keep pace with new technology and address ethical concerns surrounding our understanding of genes and chromosomes, and prevent possible misuse of such powerful information. It remains to be seen exactly how the courts will interpret GINA when confronted with specific situations.
The information contained in this article is not designed to address specific situations, and does not include rules or regulations that apply to all states. If you have questions concerning this topic, you should consult with legal counsel of your choice to obtain advice on various fact specific matters.