January 11, 2013
Max H. Sicherman
Several federal laws offer employees protection from various forms of employer discrimination. For example, an employer is prohibited from discriminating on the basis of race, color, religion or sex (Title VII of the Civil Rights Act), because an individual has a physical disability (Americans with Disabilities Act), or because of one’s age (Age Discrimination in Employment Act). However, employees should be aware of a relatively new federal statute which prohibits employment discrimination based on an individual’s most personal and private medical material: genetic information.
The Genetic Information Non-Discrimination Act, referred to as “GINA,” went into effect in 2009. In passing GINA, Congress acknowledged that there was a potential for discrimination based on an individual’s genetic makeup, especially in the areas of health insurance and employment. Consequently, under GINA, it is now unlawful for an employer to discriminate on the basis of the genetic information in regard to “hiring, discharge, compensation, terms, conditions and privileges of employment.” In addition to the prohibition on discrimination, GINA forbids an employer from requesting or requiring genetic information with respect to an employee or an employee’s family member. This key provision bars employers from “making a predictive assessment concerning an individual’s propensity to get an inheritable genetic disease or disorder based on the occurrence of an inheritable disease or disorder in a family member.”
Generally, GINA defines “genetic information” as information about (1) an individual’s genetic tests; (2) the genetic tests of family members, and (3) the manifestation of a disease or disorder in a family member. Under GINA, “genetic information” does not include information about the sex or age of the employee or his family members, or information about the race or ethnicity of the employee or his family members that is not derived from a genetic test. Moreover, not all medical tests are genetic in nature. For example, testing for the presence of a virus (that is not composed of human DNA) and alcohol or illegal drug tests do not fall under the GINA’s prohibitions.
So what should a union or an employee be on the lookout for with respect to GINA? First, you should be aware that an employer violates GINA only when it discriminates because of an employee’s or his family member’s genetic information. Simple employer knowledge of an employee’s genetic information does not violate the statute. There must be some causal connection between the discharge or deprivation of employment privileges and the employer’s knowledge of the genetic defect. Second, while not all medical information is genetic as defined by GINA, an employee should be wary of any requests for medical information or employer requirements to submit to medical testing which may reveal genetic information.
Max H. Sicherman is an Associate in the Meyer Suozzi’s Labor and Employment Law practice in the New York City office. He represents individuals and unions, both locally and nationally, in all aspects of federal and state litigation.