The latest frontier in the fight against workplace discrimination involves workers' genetic information. Just as irrational and bigoted as its brethren - race and sex discrimination - genetic discrimination has now been brought to the forefront through the passage of the Genetic Information Nondiscrimination Act (GINA) of 2008.
What is Genetic Discrimination?
Genetic discrimination has been defined by the U.S. Department of Health and Human Services (HHS) as treating others "unfairly because of differences in their DNA that increase their chances of getting a certain disease."
If an employer gains workers' genetic information and then uses it to make employment decisions - hiring, firing, pay, promotion, etc. - then, similar to if employees suffer sexual or racial discrimination, a crime has been committed.
What is Genetic Information?
While it may seem apparent that the results of a DNA test would be considered genetic information, GINA goes further and includes family medical history within the definition, as family medical history is, according to the Equal Employment Opportunity Commission (EEOC), "often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future." It is very important to note that just because one has a "predisposition" to a disease - as evidenced through genetic tests or family history - it does not mean that the disease will manifest itself at any point during a person's lifetime.
GINA
Under GINA employers are forbidden from collecting, asking for or seeking out the genetic information of employees, save a few very limited exceptions - including Family and Medical Leave Act (FMLA) situations and genetic monitoring programs concerning the biological effects of on-the-job exposure to a toxic substance. Under the law, all genetic information is to be treated like other health information and falls under the purview of HIPPA privacy regulations.
GINA also applies to insurance companies, disallowing the use of genetic information in coverage or premiums decisions.
GINA provides remedies similar discriminatory acts covered by Title VII of the Civil Rights Act, by allowing recovery for compensatory and punitive damages. GINA also prevents employers from retaliating against workers that make GINA claims.
If you feel as though you have been the victim of genetic discrimination or have questions about GINA, contact an experienced employment discrimination lawyer in your area.
