What is Genetic Information?
Genetic information discrimination in the workplace is not widely recognized. Genetic information encompasses a broad spectrum of data, including an individual’s genetic test results, family medical history, and participation in genetic services. Family medical history is considered genetic information because it can be used to assess a person’s future risk of developing a disease, disorder, or condition. Genetic information embraces an individual’s genetic information pertaining to pregnancy and assisted reproductive technologies.
What is Genetic Information Discrimination?
Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) prohibits employers and other organizations from discriminating based on genetic information. Genetic information discrimination in the workplace occurs when an employer mistreats an applicant or employee because they have a gene that causes or heightens the risk of an inherited condition. Genetic information discrimination includes inquiring about an individual’s genetic tests, the genetic tests of their family members, and any perceived genetic predispositions or vulnerabilities based on family medical history.
Employers are not allowed to use genetic information when making employment decisions, as it does not reflect a person’s present ability to perform their job. Genetic information discrimination can have severe consequences for individuals, including:
- Denial of Employment: Employers may refuse to hire individuals based on their genetic predisposition to certain diseases.
- Termination of Employment: Existing employees may be terminated due to concerns about their genetic health.
- Discrimination in Promotions and Benefits: Individuals may be denied promotions or benefits based on their genetic information.
What is Harassment Based on Genetic Information?
GINA makes it unlawful to harass someone based on their genetic information. A harasser can be a supervisor, a supervisor from another department, a co-worker, or a non-employee, such as a client or customer. Harassment may include offensive or degrading statements about an applicant, employee or a relative’s genetic information. While the law does not prohibit teasing, offhanded comments, or isolated incidents that are not serious, harassment becomes illegal when it is so severe or common that it creates a hostile or offensive work environment or leads to an adverse employment action.
What is Retaliation Based on Genetic Information?
GINA safeguards individuals from retaliation for taking action against genetic discrimination. This includes filing discrimination complaints, participating in investigations or lawsuits, or voicing concerns about discriminatory behavior.
Exceptions for Obtaining Genetic Information
While GINA generally prohibits employers from acquiring genetic information, there are six specific exceptions to this rule. These exceptions include:
- Unintentional acquisition. A manager or supervisor overhearing a conversation disclosing genetic information.
- Information collected through health or genetic services. Family medical history can be collected through health or genetic services and employer-sponsored wellness programs, as long as participation is voluntary and specific requirements are met.
- Family medical history for Family and Medical Leave Act (“FMLA”) certification. An employer may obtain an employee’s family medical history during the certification process for approving FMLA leave, leave under a comparable state law, local law, an employer’s policy, or when the employee requests time off to take care of a family member with a serious health condition.
- Information from publicly available sources. Employers can obtain genetic information from publicly available sources like newspapers, but they cannot intentionally search or access sources specifically related to an applicant’s or employee’s genetic information.
- Genetic monitoring in the workplace. Genetic information can be collected through workplace monitoring programs designed to assess the biological impact of toxic substances when required by law or under specific voluntary programs.
- DNA testing for law enforcement purposes. Employers conducting DNA testing for law enforcement purposes, such as forensic analysis or human remains identification, are allowed to acquire the genetic information of employees. This information can only be used to analyze DNA markers for quality control and to detect contamination of samples.
Keeping Genetic Information Confidential
Employers are prohibited from disclosing genetic information pertaining to applicants, employees, or any other member of the organization. This information must be kept confidential and stored in a separate medical file or stored with other medical information, as permitted by the Americans with Disabilities Act (ADA).
It is crucial to be aware of the legal and ethical implications of genetic information. While genetic information can provide valuable insights into an individual’s health, it is imperative to handle it with care and respect for privacy. Certain limited exceptions exist, such as disclosure to government officials investigating GINA compliance or as required by a court order.
Protect Yourself from Genetic Discrimination
While federal and state laws prohibit genetic information discrimination, it is crucial to be aware of your rights and take steps to protect yourself:
- Limit Sharing of Medical Information: Be cautious about sharing detailed medical information, especially family medical history, with employers unless necessary.
- Understand Your Rights: Educate yourself about genetic information discrimination laws and your rights under these laws.
- Document Everything: Keep records of any discriminatory incidents, including dates, times, and names of individuals involved.
- Consult with an Attorney: If you believe you’ve been discriminated against, seek legal advice from an experienced employment attorney.
If you believe you have been subjected to genetic information discrimination or harassment, seek legal counsel to determine your options. Our firm has over 10 years of experience representing clients in employment law cases, including federal employees and non-federal employees in California.
