Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) went into effect on November 21, 2009. GINA will have an important impact on employers because it increases protections for the employee against discrimination, retaliation, and harassment in the workplace based upon genetic information. Under Title II of GINA, it is unlawful for covered employers to use genetic information in employment decisions, it restricts the employer’s ability to collect genetic information, and it requires the employer to follow confidentiality requirements with any genetic information collected. The full text of GINA is available by clicking here. The EEOC is charged with enforcing and issuing regulations to implement Title II of GINA. If an employer violates Title II of GINA, an employee may seek any of the damages currently available under Title VII, including attorney’s fees and costs. With GINA going into effect, all covered employers should review their policies to make sure they are consistent with the new law.
Which Employers Are Covered Under Title II of GINA?
Title II of GINA applies to any employer with 15 or more employees, including private, and state and local governments, employment agencies, and labor unions.
What Is “Genetic Information?”
Title II of GINA prohibits employers from using “genetic information” in employment decisions. GINA, along with regulations issued by the EEOC, define “genetic information” as any information about an individual’s genetic tests, the genetic tests of an individual’s family members, or the manifestation of a disease or disorder in an individual’s family members. Essentially, genetic information includes any information contained in the individual’s family medical history. It is important to note that genetic information does not include information about the individual’s sex or age.
What Is Prohibited By GINA?
Discrimination Based Upon Genetic Information. Title II of GINA prohibits covered employers from discriminating against employees on the basis of genetic information when making any employment decisions, including hiring, firing, pay, promotions, or any other term or condition of employment.
Harassment Based Upon Genetic Information. Under Title II of GINA, it is unlawful to harass an individual based upon the genetic information of the individual, or the individual’s family when the harassment is so severe and pervasive that it creates a hostile work environment or when the harassment results in an adverse employment decision. It is important to note that a harasser may include a client or customer, not just the employer’s own employees or managers.
Retaliation Based Upon Genetic Information. Title II of GINA prohibits a covered employer from retaliating against an employee for filing or participating in a charge of discrimination, or otherwise opposing the discrimination with the employer.
Can Covered Employers Acquire Genetic Information?
In general, Title II of GINA prohibits the employer from acquiring genetic information from employees. There are, however, several limited exceptions to this general rule:
Inadvertent Acquisition. If the employer unintentionally acquires genetic information, the employer has not violated GINA.
Wellness Programs. The employer may collect genetic information about an employee as part of health or genetic services offered by the employer on a voluntary basis, if the employer meets certain requirements under GINA.
FMLA Certification. The employer may collect genetic information as part of the FMLA certification process, or certification for leave under similar state or local laws.
Public or Commercial Sources. The employer may acquire genetic information through commercial or public sources (such as a newspaper), provided that the employer’s purpose in reviewing such sources is not to seek out genetic information about the employee.
Toxic Substance Monitoring. The employer is permitted to acquire genetic information about an employee when the employee is being monitored for the effects of toxic substances in the workplace when such monitoring is required by law or when the employee voluntarily participates.
DNA Testing in Law Enforcement. An employer operating a DNA testing facility who tests employees for purposes of human remains identification is allowed to collect genetic information, but the genetic information may only be used to analyze DNA markers for quality control.
What Obligations Does a Covered Employer Have to Keep Genetic Information Confidential?
Under Title II of GINA, covered employers are required to keep genetic information confidential. As part of this requirement, employers must keep an employee’s genetic information in a separate medical file. Further, it is unlawful for an employer to disclose any genetic information about applicants or employees.
What Remedies Does the Employee Have Under Title II of GINA?
The employee may seek any of the remedies currently available under Title VII, including reinstatement, hiring, promotion, back pay, injunctive relief, compensatory damages, punitive damages, and attorney’s fees and costs.
Compliance Tips for Employers
GINA now provides protections for a new category of characteristics. With GINA’s expansion of protected classifications, employers should take the following steps to ensure compliance with GINA:
- Update your handbook or any stand-alone policies regarding harassment and discrimination to include a prohibition against the use of genetic information in employment decisions, and distribute the revised policy to employees and managers;
- Train your human resources department on the proper way to store genetic information about employees;
- Train your management team about the prohibitions in GINA, especially how to handle inadvertent disclosures, FMLA certification, and public and commercial sources of genetic information; and
- Post the new and revised “EEO is the Law” poster that contains information about GINA. The new poster from the EEOC is available by clicking here.
If you would like assistance creating your GINA policy, or if you would like help with other compliance materials, contact one of the employment law attorneys at Trepanier MacGillis Battina P.A..
Minneapolis employment law attorney Kelly M. Dougherty focuses her practice primarily on employment law. Kelly regularly assists employers with creating employment policies, procedural manuals, and other compliance materials. Kelly may be reached at 612.455.0504 or firstname.lastname@example.org. Trepanier MacGillis Battina P.A. is a Minnesota employment law firm located in Minneapolis, Minnesota.