NEW DISCRIMINATION LAW PROHIBITS USING GENETIC INFORMATION IN MAKING EMPLOYMENT DECISIONS
As of November 21, 2009, employers had to begin complying with the Genetic Information Nondiscrimination Act (GINA). GINA is divided into two titles. Title I prohibits insurance carriers from using genetic information to discriminate against the individuals covered under their plans. Title II is tailored to employers and prohibits the use of an employee’s genetic information in making employment decisions. This e-newsletter concerns Title II.
GINA broadly defines genetic information as genetic tests of an individual or the individual’s family members. Genetic information under GINA includes the presence of a disease or disorder in the individual’s family members. Put more colloquially, genetic information covered under GINA includes an individual’s entire medical history and that of the individual’s family members. Further, an individual’s family members under GINA include their dependents and any other relative out to the fourth degree, as the term is defined in the statute.
Title II makes it illegal to use an individual’s genetic information in making an employment decision. Covered employment decisions include hiring and firing, decisions about the terms of employment, the segregation of employees, limiting an employee’s opportunities, and limiting an employee’s benefits. For example, if an employer learns that a job applicant’s mother had breast cancer, the employer cannot consider that fact (or the applicant’s increased risk of suffering a similar fate), in deciding whether to hire the applicant. Such discrimination is permissible only if the employer can show that the information was job-related and consistent with a business necessity.
GINA goes further and makes it illegal for an employer to request, require, or purchase an employee or covered family member’s genetic information. The statute provides a few exceptions to this prohibition. An employer may inadvertently acquire this information, such as through innocent workplace conversation. Among a few other permissible exceptions, the employer may also acquire the information to comply with the Americans with Disabilities Act, the Family Medical Leave Act, or other similar laws.
Employers with 15 or more employees should make themselves familiar with these new restrictions. More importantly, they should retain an experienced employment discrimination attorney to assist them in complying with them. Compliance with GINA will require updating the employer’s posters, workplace practices and personnel manual.