Workplace Discrimination Laws Broadened By The Genetic Information Nondiscrimination Act (GINA)

Employees will soon gain protection against employers that utilize genetic testing or consider genetic background in making hiring, firing, promotion decisions. The Genetic Information Nondiscrimination Act (“GINA”) passed by Congress in March 2008 becomes effective law in the next coming weeks as this New York Times story details:
Law Seeks to Ban Misuse of Genetic Testing. On November 21, 2009, the Genetic Information Nondiscrimination Act takes effect for all employers with 15 or more employees and on December 7, 2009, the Act takes effect for insurers.

GINA forbids certain discrimination on the basis of genetic information and the collecting and sharing of certain genetic information. GINA only allows the collection of genetic information in a few limited circumstances:

(1) If the information is necessary for a certification requirement under the Family and Medical Leave Act or a state leave statute.
(2) If the information is used to monitor the effects of hazardous workplace exposure; or
(3) If the employer conducts DNA analysis as a forensic laboratory.

As science uncovers more and more genetic predispositions for disease, the importance of protecting employees from discrimination on the basis of their genes increases. Without GINA, employers would have a strong incentive to discriminate against talented employees whose genetic background threaten to drive up their health insurance premiums. Senator Ted Kennedy heralded the Genetic Information Nondiscrimination Act as “the first major civil rights bill of the new century.” Without GINA, as genetic screening became more common place, employees with “bad genes” might have found themselves unemployable.

GINA forbids discrimination not only on the basis of an employee or prospective employee’s genetic information, but also discrimination based upon genetic information of family members. A “family member” includes an individual’s spouse, dependent child and certain other relatives.

Employees should know that, unlike HIPAA and some other health laws that do not allow an employee to sue for violations, the Genetic Information Nondiscrimination Act confers a private cause of action on certain victims of genetic discrimination. Section 207 of the Genetic Information Nondiscrimination Act gives a cause of action to employees and prospective employees who are discriminated against on the basis of their genetic information or whose genetic information is improperly collected or shared.

GINA enables employees to recover lost wages, costs, attorney’s fees and, in some instances, punitive damages. The punitive damages provisions have ceilings. For example, if the employer has more than 500 employees, an employee may recover up to $300,000 in punitive damages. There is also a retaliation provision to GINA that gives a cause of action to any employee who opposes a policy or procedure that violates GINA.