The EEOC has submitted for final publication its regulations interpreting the Genetic Information Nondiscrimination Act (GINA), which prohibits employers from acquiring or using employees’ genetic information. Should employers, the vast majority of whom have never even considered employees’ genetic information, care?
Yes. Assume, during a casual conversation with an employee, a supervisor asks “How are you?” The employee responds that she is “not well” because her grandmother was just diagnosed with Alzheimer’s. The employer has just acquired the employee’s “genetic information,” which GINA defines as including an employee’s family medical history. No GINA violation has yet occurred, however, because the rules create an exception for “inadvertent acquisition.” But, suppose the supervisor then expresses concern or empathy and, in doing so, invites the employee to share more specific details about the grandmother’s condition. Because this acquisition is no longer “inadvertent,” the employer has just violated GINA -- and may be found liable for compensatory and punitive damages to the extent available under Title VII, according to the EEOC.
Therefore, an employer’s best policy is to educate supervisors not to initiate, or engage in, communications about family medical history with an employee. In the above example, to avoid GINA liability concerns, the supervisor should simply have informed the employee that she could not discuss her grandmother’s condition any further. Though one may question whether employees really benefit from such restrictive limitations on natural, constructive workplace interactions, employers will have to take steps to ensure compliance with the law.