Genetic Info Discrimination

EMPLOYMENT ALERT

NOT MY GENES - "GINA"!

By Karen A. Khan, Esq.

The Genetic Information Nondiscrimination Act of 2008 ("GINA") was signed into law on May 21, 2008, by President Bush. It prohibits discrimination based on "genetic information" in health coverage and employment. In the employment context, GINA takes effect on November 21, 2009, and will apply to all employers, including federal agencies, with fifteen or more employees. The law will take on added significance as Congress contemplates comprehensive healthcare reform.

In the EEOC's Proposed Regulations on GINA, it noted:

Many genetic tests now exist that can inform individuals whether they may be at risk for developing a specific disease or disorder. But just as the number of genetic tests increase, so do the concerns of the general public about whether they may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information. Federal Register Vol. 74, No. 39, March 2, 2009, p. 9057.

And, as Congress noted:

New knowledge about genetics may allow for the development of better therapies that are more effective against disease or have fewer side effects than current treatments. These advances give rise to the potential misuse of genetic information to discriminate in health insurance and employment. GINA Section 2(1), 42 U.S.C. 2000ff, note.

GINA will prohibit covered employers from using "genetic information" in hiring, promotion, or firing decisions and for any decisions regarding an employee's terms, conditions and privileges of employment. It will also prohibit retaliation where an employee/applicant opposes any act made unlawful by GINA.

But what does the phrase "genetic information" mean?

Well, Congress broadly defined the phrase to mean (a) genetic tests of the employee/applicant, (b) genetic tests of the employee's/applicant's "family members" such as dependents and including up to 4th degree relatives, (c) the manifestation of a disease or disorder in family members of the employee/applicant (for example, family history of heart disease), and (d) genetic tests of a fetus carried by the employee/applicant or their family member, or an embryo lawfully held by the employee/applicant who is receiving assistive reproductive services.

GINA will also prohibit employers from deliberately requiring, purchasing, or requesting an employee's/applicant's genetic information. And, if an employer inadvertently or lawfully acquires genetic information (i.e., to comply with family and medical leave or disability laws), the information must be kept separate and treated as a confidential medical record.

The EEOC is charged with enforcing GINA, and the available remedies for violations will be the same as those afforded under Title VII, such as backpay, compensatory and punitive damages, and attorney's fees to the prevailing party. Individuals may also sue for violations of GINA, but will have to first file a charge of discrimination with the EEOC.

Filing a charge of discrimination with the EEOC is not the only avenue for pursuing claims of genetic discrimination, however. The District of Columbia and Maryland already have laws which prohibit genetic discrimination in employment, and Virginia prohibits genetic testing as a condition of employment.

Whether you are an employee or an employer, it is important that you be aware of GINA and your rights and obligations under it.

The contents of this Employment Alert are intended for informational purposes only and must not be considered as legal advice.

Karen A. Khan is a local attorney and litigator representing employers and employees in all areas of employment law who has represented both large corporations and individual employees alike in employment discrimination matters, and who has conducted litigation nationwide.

The Khan Law Group, PLLC is a Washington, D.C. based employment law firm representing corporate clients as well as individual employees with employment issues in Washington DC, Maryland, Virginia, and nationwide. The Group is dedicated to providing the highest calibre of personalized legal services and representation.

Contact The Khan Law Group, PLLC at 202-290-1670, for a confidential consultation.