Genetics information and employment law

According to the Equal Employment Opportunity Commission, Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), forbids employment discrimination based on genetic information. The law went into effect on November 21, 2009 during the President Obama Administration. The law prohibits using genetic information in making decisions about employment. The law applies to employers and other covered entities. Covered entities include labor organizations, employment agencies, and joint labor-management training and apprenticeship programs.

Employers and covered entities can’t:

  • Request an applicant’s genetic information
  • Purchase or require genetic information

Employers and covered entities also generally can’t disclose genetic information. There are strict limits on disclosures.

GINA is enforced by the EEOC through Title II. 

Title I, which governs the use of genetic information in health insurance is regulated by the Department of Labor, the Department of Health and Human Services, and the Department of the Treasury.

What is genetic information?

The EEOC discussion of genetic information states that genetic information includes:

  • Information about your genetic tests
  • Information about the genetic tests of family members
  • “Information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history).”
  • Requests by an individual for (or receipt of) genetic services
  • Participation in clinical research – which includes genetic services for the individual or an individual’s family member
  • “Genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual”
  • “The genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.”

What conduct or actions does GINA consider discrimination due to genetic information?

GINA prohibits employers from discrimination due to genetic information when it comes to all aspects of employment such as:

  • Hiring
  • Termination or firing
  • Pay and/or salary
  • Job duties and assignments
  • Promotions
  • Training opportunities
  • Fringe benefits
  • Other employment conditions and terms

The EEOC specifically states that, “An employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual’s current ability to work.”

What does the EEOC consider as acts of genetic information harassment

GINA makes it illegal to harass you or someone you know due to their genetic information. Examples of harassment include:

  • Making derogatory statements
  • Making offense remarks

The statements and remarks include anything about an employee’s genetic information, an applicant’s genetic information, or a relative’s genetic information

Even harassment by teasing, offhand comments, or other occurrences may rise to the level of harassment if they are “so severe or pervasive that it creates a hostile or offensive work environment.” Minor acts may also become harassment if they cause an employee to be fired, demoted, or suffer some other adverse employment consequence.

Harassers can include the victim’s:

  • Supervisor
  • A supervisor in another part of the workplace
  • A co-worker
  • A client
  • A customer

How does GINA define retaliation?

GINA protects applicants and employees who:

  • File a discrimination complaint
  • Participate in a discrimination investigation – such as a lawsuit or an investigation

By making it illegal to “fire, demote, harass, or otherwise retaliate” against the applicant or employee. Employees should never be discriminated against because they assert their legal rights.

What are the rules against acquiring genetic information?

Generally, employees cannot acquire genetic information about you. There are a few approved exceptions such as:

  • Inadvertent acquisitions of genetic information. Examples include a manager overhearing a worker speaking about the illness of a family member.
  • Information obtained through a voluntary program offered by the employer – as part of a health wellness program or genetic service.
  • A family medical history – if the family member is asking for leave (such as FMLA leave or similar California family leave) to care for a family member with a severe health condition.
  • If the genetic information is acquired through documents that are publicly and commercially available – such as newspapers – provided:
    • “the employer is not searching those sources with the intent of finding genetic information or accessing sources from which they are likely to acquire genetic information (such as websites and on-line discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination).”
  • Through voluntary monitoring programs or mandated monitoring programs – to monitor the biological effects of toxic substances in the workplace.
  • Genetic information of employees which is acquired in DNA testing “for law enforcement purposes as a forensic lab or for purposes of human remains identification” – provided the genetic information is only “used for analysis of DNA markers for quality control to detect sample contamination.”

Is genetic information confidential?

Generally, employers and covered entities can’t disclose genetic information about employees, applicants or members. Covered entities must keep the confidential genetic information in a separate medical file. The record-keeping should also comply with the Americans with Disabilities Act if necessary. Some exceptions may apply such as “the disclosure of relevant genetic information to government officials investigating compliance with Title II of GINA and for disclosures made pursuant to a court order.”

Which employers must comply with GINA?

Employers with 15 or more employees must comply with GINA? 

What additional concerns should employees understand about GINA?

There are strict time limits for when federal employees and state employees must contact and EEO council. There are also strict deadlines for filing a claim. Employees who believe they have suffered any type of discrimination or harassment by an employer due to their genetic information (or the genetic information) of a family member – should arrange to speak with an experienced California employee rights lawyer as soon as possible.

Employers are generally required to post notices of the GINA law in the workplace.

At the California Law Offices of Stephen A. Danz and Associates, our seasoned employee rights lawyers represent employees who have been discriminated against for any reason. We demand job reinstatement, back pay, back benefits, statutory fines, and other damages depending on the applicable statutes and case law. To discuss any type of discrimination case, call us at 877-789-9707 or use our online contact form to make an appointment. Se habla espanol.