The ability to access genetic information for indicators of potential disease has been a growing source of concern for many employees, who may fear potential retaliation or loss of employment on that basis. New technology makes it ever more likely that genetic information is available – sometimes for the wrong reason.
The Genetic Information Nondiscrimination Act (GINA) was passed in 2008 to prohibit employer use of genetic information. Title II of GINA prohibits the acquisition or use of genetic information in the context of employment.
Five years after the passage of GINA, the EEOC has settled its first ever GINA based discrimination suit. Filed in the Northern District of Oklahoma on May 7, 2013, the suit was brought against employer Fabricut Inc. (Equal Employment Opportunity Commission v. Fabricut Inc. Case No. 4:13-cv-00248-CVE-PJC) on behalf of a temporary employee. The employee was subjected to a pre-employment medical examination requiring her family history on a number of specific medical conditions. She was also required to obtain testing to detect the existence of carpal tunnel syndrome (CTS). Despite passing the test, Fabricut allegedly rescinded her offer of employment on the basis of this pre-employment examination.
Under a negotiated consent decree, the company agreed to pay $50,000 in damages in addition to a number of workplace policy changes and anti-discrimination measures relating to ADA and GINA.
What kinds of employers must comply with GINA?
- Employers, both private and public, with 15 or more employees
- Employment agencies
- Labor organizations
- Joint labor-management committees
- Federal executive branch agencies
- Executive Office of the President
What does Title II of GINA prohibit?
Title II prohibits an employer’s use of genetic information in making decisions relating to employment, such as hiring, firing, or opportunities for advancement. Employers are restricted from requesting genetic information and must keep genetic information of employees or applicants confidential. Title II also prohibits retaliation against employees on the basis of genetic information.
What counts as genetic information?
The EEOC states that Genetic information includes:
- Family medical history
- Information about an individual’s or family member’s genetic tests
- The fact that an individual or his/her family member has sought or received genetic counseling or participated in research that includes genetic testing
Where can I find more information about GINA?
The EEOC has a large amount of information available regarding GINA and its protections. Further information can be found at http://www.eeoc.gov/laws/regulations/gina-background.cfm
What can I do if I believe my employer has violated GINA?
It is always best to get advice from a lawyer if you believe your rights have been violated. Because every situation is unique, the only way to get help and advice on a particular case is to consult directly with an employment attorney who can best advise you on the rights and protections that are entitled to you as a result of the GINA legislation.