By Lois A. Gruhin
On May 21, 2008, President Bush signed into law the Genetic Information
Nondiscrimination Act (“GINA”). GINA expands Title VII of the Civil
Rights Act of 1964 (“Title VII”) to prohibit employers from
discriminating against employees on the basis of “genetic information”
in employment decisions. “Genetic information” not only includes tests
that determine variations in a person’s DNA, but also information
regarding family history of a particular disease.
GINA also prohibits employers from collecting genetic information
from their employees, except for rare circumstances such as testing for
adverse effects to hazardous workplace exposures, and requires strict
confidentiality of genetic information obtained by employers. Similar
to other classifications under Title VII, an employee alleging a
violation of GINA can recover damages and sue for retaliation in the
event of an adverse employment action following the complaint of a
violation.
In addition to expanding Title VII protections for employees, GINA
also prohibits health insurers from making coverage decisions based on
the results of genetic testing. The rationale behind the legislation is
to encourage individuals to get tested for certain genetic diseases and
participate in clinical trials, free from fear of adverse employment
and health insurance decisions based upon future likelihood of genetic
disease. While GINA affords individuals these protections, it does not
prohibit life insurers from taking into account a person’s genetic make
up when issuing policies.
Consistent with the new law, employers should treat an individual’s
genetic information as a protected classification similar to his race,
sex, religion, etc. Employers should not make hiring, firing,
promotion, or placement decisions based on this information, and amend
their current policies to include genetic information as prohibited and
illegal discrimination.
