On November 8, 2010, the Equal Employment Opportunity Commission (the “EEOC”) issued final regulations that interpret Title II of the Genetic Information Nondiscrimination Act (“GINA”). In issuing the regulations, the EEOC’s goal was “to implement the various provisions of Title II consistent with Congress’s intent, to provide some additional clarification of those provisions, and to explain more fully those sections where Congress incorporated by reference provisions from other statutes.” The final regulations were published in the Federal Register on November 9, 2010, and will take effect on January 10, 2011.

Title II of GINA, which took effect on November 21, 2009, restricts employers and other covered entities, such as employment agencies, labor organizations, and joint apprenticeship or training programs, from employment discrimination based on an individual’s genetic information. It also bans covered entities from requesting, requiring, or purchasing the genetic information of an individual or that individual’s family member. There are six exceptions to this ban, including when a covered entity inadvertently requests or acquires such information and when a covered entity requests medical history under the Family and Medical Leave Act. In cases where a covered entity possesses genetic information, “such information shall be maintained on separate forms and in separate medical files and be treated as a confidential medical record” in the same manner that medical records are treated under the American with Disabilities Act (“ADA”). Title II of GINA also incorporates by reference many of the definitions, remedies, and procedures from Title VII of the Civil Rights Act of 1964 and other statutes protecting government employees from discrimination.  

The regulations provide further clarification on some of the definitions set forth in Title II, such as “employee” and “employer.” For example, the regulations explain that the term “employee” includes an applicant and a former employee. The EEOC also provides additional guidance and examples for certain terms that are not found in other employment discrimination statutes, such as “family member,” “family medical history,” “genetic information,” and “genetic test.” Addressing the type of claims that Title II supports, the regulation “makes clear that claims of harassment on the basis of genetic information are cognizable,” but that Title II does not create a cause of action for disparate impact.  

The EEOC also discusses the ban on acquisition of genetic information. Most significantly, “requesting” genetic information includes conducting an Internet search, actively listening to a third-party conversation, searching an individual’s personal effects, and making requests for information about an individual’s current health status in a way that is likely to result in obtaining genetic information. The regulations also provide examples for the six exceptions to the ban on acquisition of genetic information. For example, the inadvertent disclosure exception includes situations where a manager, supervisor, or representative learns about genetic information from “overhearing” a conversation, from conducting a casual conversation, or from a social media platform that he or she was given permission to access. Similarly, the EEOC provides further guidance regarding the confidentiality requirements. While genetic information must be kept separate from an individual’s personal file, the regulation clarifies that the genetic information may be kept in the same file as medical information subject to the ADA.  

Finally, the regulations describe the relationship between Title II of GINA and other federal, state, and local laws governing genetic discrimination, the privacy of genetic discrimination, and discrimination based on disability. The EEOC notes that “[o]ver 30 states have laws addressing genetic discrimination in employment” and that GINA “does not preempt any other state or local law that provides equal or greater protections than GINA.”  

By explaining and clarifying Title II of GINA, these regulations are likely to result in an increase in GINA claims brought against employers and other covered entities.