It is against the law for employers – or even potential employers – to discriminate based on an employee’s genetic information.
That statement may sound somewhat “far out” – most people have the reaction that an employer can’t discriminate because they don’t HAVE any genetic information about their employees or potential employees.
But, in today’s world, employees need this protection. It is extremely easy for an employer to get genetic information. Hence, we have a law, the primary purpose of which is to prevent employers from taking an adverse employment action against an employee as a result of their genetic information or the genetic information of an employee’s family member which may predict the employee’s health. The Genetic Information Nondiscrimination Act of 2008 (“GINA”) makes it unlawful for an employer to discriminate against an employee or applicant based on their genetic information. Consider this scenario:
An employer visits facebook and searches for the profile page of an employee. The employer reads a post from the employee stating that the employee’s mother was recently diagnosed with breast cancer. The employer then uses that information and decides not to promote the employee because of a perceived likeliness that the employee will be diagnosed with breast cancer at some point in the future.
The employer in this scenario is in violation of GINA for searching and obtaining genetic information about the employee, and for using such information to discriminate against the employee.
GINA prohibits an employer from using genetic information when making employment decisions such as promotions, layoffs, compensation, job assignments or any other employment-related decision. Specifically, GINA states: “It shall be unlawful employment practice for an employer (1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information…”
What is “Genetic Information?”
GINA defines genetic information as: “…with respect to any individual, information about (i) such individual’s genetic tests, (ii) the genetic tests of family members of such individual, and (iii) the manifestation of a disease or disorder in family members of such individual.”
Obtaining Genetic Information
In addition to GINA’s protection of an employee from discrimination by an employer based on her/his genetic information, GINA also makes it unlawful for an employer to “request, require, or purchase genetic information with respect to an employee or family member of an employee…” The employer can violate GINA without having the intent to acquire genetic information about an employee. The employer may violate GINA by simply engaging in activities that are likely to result in the employer obtaining genetic information about an employee. In the scenario provided above, the employer violated GINA by searching for the employee on facebook. While facebook is a public social media website, facebook requires you to have an account and therefore the access is somewhat restricted. Further, it is reasonable to expect that an employee would share information that would be personal in nature and may be related to her or his genetic information or the genetic information of her or his family members.
Exceptions to GINA
There are some exemptions from GINA permitting an employer to have genetic information about an employee and not be in violation of GINA, including: an employer’s inadvertent receipt of genetic information about an employee. This could occur when an employee speaks openly about a medical issue of themselves or their family members. It is, however, still unlawful for the employer to discriminate against the employee based on such information, or for the employer to take adverse employment actions based on the genetic information.
By Bob Truhlar and Carol Zumwalt