U.S. Equal Employment
Opportunity Commission
Genetic Information Discrimination
Title II of the Genetic Information Nondiscrimination Act of 2008, which
prohibits genetic information discrimination in employment, takes effect on
November 21, 2009.
Under Title II of the Genetic Information Nondiscrimination Act (GINA), it is
illegal to discriminate against employees or applicants because of genetic
information. Title II of GINA prohibits the use of genetic information in making
employment decisions, restricts acquisition of genetic information by employers
and other entities covered by Title II, and strictly limits the disclosure of
genetic information.
The EEOC enforces Title II of GINA (dealing with genetic discrimination in
employment). The Departments of Labor, Health and Human Services and the
Treasury have responsibility for issuing regulations for Title I of GINA, which
addresses the use of genetic information in health insurance.
Definition of gGenetic Informationh
Genetic information includes information about an individualfs genetic tests
and the genetic tests of an individualfs family members, as well as information
about any disease, disorder, or condition of an individualfs family members
(i.e. an individualfs family medical history). Family medical history is
included in the definition of genetic information because it is often used to
determine whether someone has an increased risk of getting a disease, disorder,
or condition in the future.
Discrimination Because of Genetic Information
The law forbids discrimination on the basis of genetic information when it
comes to any aspect of employment, including hiring, firing, pay, job
assignments, promotions, layoffs, training, fringe benefits, or any other term
or condition of employment. An employer may never use genetic information to
make an employment decision because genetic information doesnft tell the
employer anything about someonefs current ability to work.
Harassment Because of Genetic Information
Under GINA, it is also illegal to harass a person because of his or her
genetic information. Harassment can include, for example, making offensive or
derogatory remarks about an applicant or employeefs genetic information, or
about the genetic information of a relative of the applicant or employee.
Although the law doesn't prohibit simple teasing, offhand comments, or isolated
incidents that are not very serious, harassment is illegal when it is so severe
or pervasive that it creates a hostile or offensive work environment or when it
results in an adverse employment decision (such as the victim being fired or
demoted). The harasser can be the victim's supervisor, a supervisor in another
area, a co-worker, or someone who is not an employee, such as a client or
customer.
Retaliation Because of Genetic Information Discrimination
Under GINA, it is illegal to fire, demote, harass, or otherwise gretaliateh
against an applicant or employee for filing a charge of discrimination,
participating in a discrimination proceeding (such as a discrimination
investigation or lawsuit), or otherwise opposing discrimination.
Rules Against Acquiring Genetic Information
It will usually be unlawful for an employer to get genetic information. There
are six narrow exceptions to this prohibition:
- Inadvertent acquisitions of genetic information do not violate GINA, such
as in situations where a manager or supervisor overhears someone talking about
a family memberfs illness.
- Genetic information (such as family medical history) may be obtained as
part of health or genetic services, including wellness programs, offered by
the employer on a voluntary basis, if certain specific requirements are met.
- Genetic information may be acquired as part of the certification process
for FMLA leave (or leave under similar state or local laws), where an employee
is asking for leave to care for a family member with a serious health
condition.
- Acquisition through commercially and publicly available documents like
newspapers is permitted, as long as the employer is not searching those
sources with the intent of finding genetic information.
- Acquisition through a genetic monitoring program that monitors the
biological effects of toxic substances in the workplace is permitted where the
monitoring is required by law or, under carefully defined conditions, where
the program is voluntary.
- Acquisition of genetic information of employees by employers who engage in
DNA testing for law enforcement purposes as a forensic lab or for purposes of
human remains identification is permitted, but the genetic information may
only be used for analysis of DNA markers for quality control to detect sample
contamination.
Confidentiality of Genetic Information
It is also unlawful for an employer to disclose genetic information about
applicants or employees. Employers must keep genetic information confidential
and in a separate medical file. (Genetic information may be kept in the same
file as other medical information in compliance with the Americans with
Disabilities Act.) There are limited exceptions to this non-disclosure
rule.