The Genetic Information Anti-Discrimination Act of 2008 ("GINA" or "the Act") will take effect on November 21, 2009. Covered employers should start learning about this new anti-discrimination law now, to ensure compliance come November.
The Basics
Title II of GINA prohibits discrimination in employment based on a person's genetic information, or the genetic information of a person's family members, and requires covered entities to protect the confidentiality of individuals' genetic information. GINA applies to all entities covered under Title VII of the Civil Rights Act of 1964 ("Title VII"); i.e., employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs. It also applies to federal employers covered by Section 717(a) of the Civil Rights Act of 1964, such as military departments, executive agencies, and the United States Postal Service.
The term "genetic information" is generally defined as information about (1) genetic tests that an individual has undergone, (2) the genetic tests of an individual's family members, and (3) the manifestation of a disease or disorder in a family member. More specifically, the term "genetic information" encompasses use of genetic services (such as counseling) or participation in clinical research involving such services. The Equal Employment Opportunity Commission ("EEOC"), which is tasked with enforcing GINA, has issued proposed regulations which state that "genetic information" also includes genetic information of a fetus or an embryo. Final regulations were expected in May, but have not yet been released.
Key Provisions
GINA makes it unlawful for an employer to "fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee." GINA also prohibits retaliation against an individual due to his or her opposition to genetic discrimination, or to his or her participation in an investigation, hearing, or proceeding addressing alleged genetic information discrimination.
Additionally, an employer generally is not permitted to request, require, or purchase genetic information with respect to an employee or family member of the employee. There is an exception to this prohibition, however, if all of the following apply:
- the employer is offering health or genetic services (such as a wellness program);
- the employee provides "prior, knowing, voluntary, and written authorization" on a form that is easy to understand, specifies the types of information that will be obtained, explains how it will be used, and describes GINA's restrictions on the disclosure of genetic information;
- only the employee (or family member, if the family member is receiving the services) and the health care provider or genetic counselor involved receive individually identifiable information with respect to the results of the services; and
- the employer does not receive any individually identifiable genetic information about the service recipients. (Employers are, however, permitted to receive aggregate results of such services, so long as the identity of specific employees is not disclosed therein.)
GINA also requires that any genetic information a covered entity has about an employee must be kept held in strict confidence. An employer can meet this requirement simply by keeping genetic information in the same file in which it maintains confidential medical information pursuant to the Americans with Disabilities Act.
Violating The Act, And The Consequences
It is important for employers to understand that, even when genetic information is legally obtained or disclosed, that information still cannot be factored into any employment decision. That's because although the prohibitions against acquiring and disclosing genetic information have exceptions, GINA's prohibition against discrimination is absolute. For example, imagine a person applying for a position with an organization that provides services to cancer patients mentions that she is especially interested in the job because many women in her family have had breast cancer. If the employer finds itself deciding between that woman — whom the employer now knows could be prone to serious illness — and another applicant who did not reveal any such information, the employer cannot take the first applicant's family history into consideration. By the same token, that same employer is not permitted to ask an applicant or employee if he has a history of cancer in his family.
The administrative and enforcement procedures under GINA are the same as those applicable to Title VII. Employers found to have violated GINA can be held liable for compensatory and punitive damages, reasonable attorney's fees, and injunctive relief (including reinstatement and hiring, back pay, and other equitable remedies). Unlike other anti-discrimination laws, GINA currently does not allow for claims based on a theory of disparate impact. However, the Act explicitly leaves the possibility open that disparate impact claims will be permitted in the future.
Action Items
Employers and other covered entities should begin bringing themselves into compliance with GINA now, to avoid becoming a test case come November. First, all managers, supervisors, and human resources personnel should familiarize themselves with the basic provisions of the Act. Employers also must update their policies and procedures to include GINA's requirements. In this respect, it is particularly important for employers to understand that, while the Americans with Disabilities Act permits them to obtain family medical histories or conduct genetic tests of job applicants after an offer has been made (provided certain caveats are met), these practices are prohibited under GINA. Therefore, employers should amend their hiring policies and procedures to remove reference to such practices, and must stop engaging in such practices effective November 21, 2009. Finally, all covered entities should contact their labor and employment counsel to assess how GINA is likely to affect them specifically, and should work with counsel to ensure GINA-readiness.
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