Just as employment discrimination claims are on the rise, Congress recently passed a new law, the Genetic Information Nondiscrimination Act (GINA), prohibiting discrimination by employers or insurers on the basis of individuals’ genetic information, and creating a new private right of action. In the employment context, this new law prohibits employers from discharging, refusing to hire or otherwise discriminating against an employee in the terms and conditions of employment based upon the employee’s genetic information.

GINA also prohibits employers from collecting genetic information or conducting any genetic testing of employees except under discrete circumstances, such as monitoring the effects of hazardous workplace exposures. Although some say GINA is designed to solve a problem that does not exist — as few employers currently conduct genetic testing or collect genetic information of their employees — it is nevertheless likely that this new law will give rise to a further increase in litigation as a result of its rather broad provisions.

Broad Definition of ‘Genetic Information’ Creates Concern

Most notably, under the federal law, ‘genetic information’ is defined not only as a person’s genetic tests and the tests of a person’s family members, but also any “manifestation of a disease or disorder in family members of such individual.” Accordingly, GINA’s broad definition of genetic information creates an opportunity for an employee who has told his or her employer of a family history of breast cancer or alcoholism, for example, to claim genetic bias if he or she is later fired. Further, under GINA ‘family members’ include an individual’s dependents and fourth-degree relatives of such individual or of such individual’s dependents. GINA thus appears to prohibit discrimination based upon the family medical history of one’s spouse and/or adopted children, even though they do not share the same family medical history.

Few Exceptions for Acquisition and Disclosure

GINA’s provisions also leave employers vulnerable to claims for improper acquisition and disclosure of such broadly-defined genetic information. For example, although GINA specifically exempts employers who obtain such information through a request under the Family Medical Leave Act or pursuant to employer-sponsored wellness programs, this exception does not extend to other sick leave requests or foreseeable disclosures under other federal laws. Under GINA, it is possible for an employer to acquire genetic information when engaging in the interactive process required by the Americans with Disabilities Act for accommodating a disabled employee. Although GINA specifically exempts employers who obtain such information “inadvertently,” it remains unclear what constitutes an “inadvertent” acquisition, particularly where an employer requires a doctor’s note or explanation from an employee for taking sick leave.

GINA’s strict provisions against the disclosure of genetic information, once acquired, may also create potential traps for employers. Although the Act permits disclosure of genetic information in response to a court order, it does not permit disclosure of such information in response to a subpoena or civil discovery request. Thus, an employer could easily produce such information inadvertently in response to subpoenas seeking personnel files and medical information of employees without realizing that such disclosure violates GINA. Unlike the provisions governing acquisition of such information, there is no exception for inadvertent disclosure.

Some Concerns May Be Overblown

Despite these potential pitfalls, the law may not create a significant rise in litigation as feared by some employers. While 34 states and Washington, D.C. currently ban genetic discrimination in the workplace, few discrimination cases have actually been filed or tried under these laws. The scope and function of state laws, however, vary widely. And in most cases, these state laws only prohibit employers from requiring or requesting genetic tests of employees, or from discriminating against employees on the basis of the results of such tests. GINA is broader than most state laws, particularly with respect to its coverage of information about an individual’s family medical history. GINA does not preempt or limit more protective state laws, however, making compliance that much more challenging for multi-jurisdictional employers.

Employers may find some solace in the fact that, unlike Title VII, GINA specifically provides that “disparate impact” claims – or claims against an employment policy or practice which appears neutral on its face but in practice has an adverse effect on a protected group – will not be recognized in genetic bias cases. Rather, the Act provides only that, six years from now, Congress will appoint a commission to study the developing science of genetics and make recommendations as to whether the Act should be amended to include a provision for disparate impact claims.

General Guidance

The requirements imposed by GINA on employers will go into effect in November 2009, and the EEOC is required to issue final regulations by next May 2009. In the meantime, employers are encouraged to evaluate their current practices with regard to acquiring genetic information and ensure that these practices comply with the Act, or fall within any of the Act’s exceptions. Employers should also consider the following:

  • Avoid obtaining genetic information unnecessarily and strictly maintain its confidentiality.
  • Avoid making any inquiries of prospective or current employees that might elicit information concerning the family medical history of the employee or family members of the employee, unless required by the Family and Medical Leave Act.
  • Consider screening all medical information received to determine if it falls within the definition of ‘genetic information.’
  • File such genetic information separately to ensure that it will not be produced except in response to a court order.
  • If genetic monitoring of the biological effects of workplace toxins on employees is necessary or required by law, consult with legal counsel before instituting such a program to ensure that it is in compliance with GINA’s requirements.