Alert > Employment and Labor
The Genetic Information Non-Discrimination Act (GINA) Takes Effect
The Genetic Information Non-Discrimination Act of 2008 (“GINA”), which applies to all employers with at least 15 employees, took effect on Nov. 21, 2009. As you may recall from Bingham's May 21, 2008 alert, GINA, signed into law by former President Bush in May of 2008, prohibits employers from (i) using genetic information in connection with employment decisions, (ii) harassing or discriminating against an employee because of genetic information, or (iii) retaliating against an employee for involvement in discrimination proceedings or otherwise opposing discrimination. Additionally, with some limited exceptions, GINA prohibits employers from collecting genetic information, and requires employers afford confidentiality to genetic information obtained about employees.
GINA Defines Genetic Information Broadly
GINA defines genetic information broadly, thus substantially expanding Title VII of the Civil Rights Act of 1964, which already prohibits discrimination on the basis of race, gender, and a multitude of other protected classes. GINA’s definition includes information about an employee’s genetic tests, such as DNA tests and RNA tests, requests for or receipts of genetic services, and information regarding an employee’s family history regarding diseases, genetic tests, and participation in clinical research with genetic services. The definition of family included in GINA is very broad, and includes dependents and any other individual who is a first-degree, second-degree, third-degree, or fourth-degree relative of the employee or an employee’s dependent.
Prohibited Employment Practices
- Discrimination and Harassment: GINA prohibits discrimination based on genetic information. Employers are prohibited from using genetic information when making all decisions related to terms, conditions, or privileges of employment without exception. GINA prohibitions also apply to apprenticeship and other training or retraining programs, including on-the-job trainings and labor organizations. Under GINA, harassment based on genetic information is also illegal. Courts are expected to analyze GINA harassment claims by assessing whether the alleged conduct is so severe or pervasive that it creates a hostile or offensive work environment or results in an adverse employment decision.
- Acquisition: GINA prohibits employers from obtaining genetic information about employees, applicants, and family members with limited exceptions. Employers do not violate GINA where genetic information is obtained: (a) inadvertently, e.g., at the “watercooler”; (b) as part of voluntary health or genetic services, including wellness programs, if certain specific requirements are satisfied; (c) as part of a Family Medical Leave Act (FMLA) (or similar state or local law) certification where an employee is seeking leave to care for a family member with a serious health condition; (d) through commercially and publicly available documents (so long as the employer is not intentionally looking for the information); (e) to determine, in certain circumstances, whether employees were exposed to hazardous materials; or (f) for law enforcement purposes.
- Disclosure: GINA prohibits, employers from disclosing any genetic information obtained about applicants, employees, or family members. (There are limited exceptions such as compliance with a court order or governmental investigation.)
- Storage: Employers must keep any collected information in separate forms and in separate medical files. Genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act (ADA).
Consequences of Violating GINA
GINA has teeth. The remedies for GINA violations can be steep, including compensatory and punitive damages.
Significance for Employers
Employers should understand GINA’s prohibitions and requirements and immediately put into place necessary procedures to ensure compliance with the new law. Violation of GINA can have significant consequences, and unlike Title VII cases where there are limited exceptions to the prohibition on making employment decisions based on information that would otherwise be protected (e.g., bona fide occupational qualifications), there are no such exceptions under GINA. Given that employers already should have an obligation to keep medical files confidential and should not be basing employment-related decisions on genetic information, employers may already be in compliance with the law. However, employers should review their current policies and practices to ensure compliance and educate managers regarding the requirements of the new law.
This alert was authored by Bingham labor and employment partner Jacqueline Aguilera and associate Jacqueline Bronson. For more information on this alert or any other labor and employment issues, please contact any of the lawyers listed below:
Boston
John Adkins, john.adkins@bingham.com, 617.951.8551
Louis Rodriques, Co-chair, Labor and Employment Group, louis.rodriques@bingham.com, 617.951.8340
Los Angeles/Orange County
Jacqueline Aguilera, jackie.aguilera@bingham.com, 213.229.8439
Debra Fischer, debra.fischer@bingham.com, 213.680.6418
San Francisco
Alan Berkowitz, alan.berkowitz@bingham.com, 415.393.2636
James Severson, james.severson@bingham.com, 415.393.2242
Walter Stella, walter.stella@bingham.com, 415.393.2750
Santa Monica
Arthur Silbergeld, arthur.silbergeld@bingham.com, 310.255.9077
Silicon Valley
Wendy Lazerson, Co-chair, Labor and Employment Group, wendy.lazerson@bingham.com, 650.849.4840
New York
Douglas Schwarz, douglas.schwarz@bingham.com, 212.705.7437
Tokyo
Mie Fujimoto, mie.fujimoto@bingham.com, 81.3.6721.3138
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