Hopefully, you have never had to worry about genetic discrimination at work. The thought of a boss or employer using your genetic information to make employment decisions eerily reminds us of the past days of eugenics and scenes from the movie Gattaca. Fortunately, Congress has already made genetic discrimination illegal within the employment and health insurance settings by passing the Genetic Information Nondiscrimination Act of 2008.
Genetic Information Nondiscrimination Act of 2008
The Genetic Information Nondiscrimination Act of 2008 (GINA) is a federal law that prohibits employers and health insurance providers from using genetic information to make substantive decisions, such as hiring, firing, and denying insurance coverage. When passed in 2008, it received overwhelming Congressional support, passing the Senate 95-0 and the House 414-1.
Within the employment setting, the GINA not only prohibits employers from making employment decisions based on their employees’ genetic information, but it also prohibits employers from requesting genetic information, whether it’s asking employees to submit to a genetic test or fill out an application. Even if the employer wants to know this information for nondiscriminatory reasons or doesn’t even act on the information, the GINA prohibits the employer from asking for it.
There are some exceptions to this rule, such as where an employee gives permission to the employer to request the genetic information, where genetic services are offered as a part of an employer’s health and wellness plan, or where the employer needs to request the information to comply with the Family and Medical Leave Act of 1993 (FMLA) or similar state laws.
For an in-depth discussion of how the GINA applies in the workplace, please read Lisa Guerin’s Nolo.com article “Genetic Information and Workplace Discrimination.”
The GINA in Action: EEOC v. Joy Underground Mining, LLC
Given the newness of the GINA, there hasn’t been a lot of litigation concerning its enforcement, but there have been a few notable cases. One recent case involves the lawsuit filed by the Equal Employment Opportunity Commission (EEOC) against Joy Underground Mining for violating the GINA.
According to the EEOC, Joy Underground required individuals who had just received conditional offers to submit to medical evaluations. The medical evaluations did not violate the GINA. However, as a part of the medical evaluations, Joy Underground asked the prospective employees to state whether they had a family history of certain diseases, such as heart disease, diabetes, and cancer.
The case ended up settling, with Joy Underground agreeing to stop violating the GINA by asking for genetic information and the EEOC being able to monitor Joy Underground’s compliance with the GINA. One of the elements of the settlement included Joy Underground training its management and human resources departments on permissible hiring practices.
