The Very Fabric Of Our DNA: Genetic Information Discrimination In The Workplace
Many people take DNA tests every year. Services such as AncestryDNA and 23andMe have become increasingly popular over the last few years. Undoubtedly, genetic testing has become instrumental not only in learning about one’s family history but also in helping to diagnose medical conditions. One of the lesser-known areas of employment law involves genetic information discrimination. This post will examine the Genetic Information Nondiscrimination Act (“GINA”) of 2008 and explore its impact in the workplace.
Title II of GINA prohibits discriminating against employees or applicants because of their genetic information. As with other classes protected by federal law (such as Title VII or the ADA), GINA applies to employers with fifteen (15) or more employees. As a starting point, it is important to understand the meaning of “genetic information.” This phrase includes information about genetic tests and the genetic tests of an individual’s family members (spouse, dependent child, parent, grandparent, or great-grandparent), as well as family medical history. Congress included family medical history because of the routine use of such information to determine if an individual is at an increased risk of getting a disease, condition, or disorder in the future. “Genetic information” also includes an individual’s request for or receipt of genetic services or the participation in clinical research that includes genetic services. Furthermore, the phrase includes the genetic information of a fetus or embryo carried by the employee or a family member of the employee.
GINA makes it clear that an employer may not use genetic information to make an employment decision. Under GINA, it is also illegal to harass a person because of her or his genetic information. This includes, as an example, routinely mocking an employee for his genetic information or about the genetic information of the employee’s family member. As with other forms of discrimination, the harassment must be severe and pervasive to be actionable; in other words, an offhanded comment or isolated incidents of harassment will not be enough to assert a claim against an employer. As with other forms of harassment, employees should report incidents to the proper individual, and employers should take all complaints seriously. Finally, it is illegal to retaliate against an employee for opposing discrimination based on genetic information. Retaliation may include disciplining an employee, demoting an employee, or terminating an employee for raising complaints of discrimination based on genetic information or filing a charge of discrimination with the Equal Employment Opportunity Commission and/or the proper state agency (in Florida, the Florida Commission on Human Relations). It should also be noted that when employers obtain genetic information about employers, such information shall remain confidential except in very limited circumstances.
GINA brought to the forefront the importance of genetic information and ensured that employees are protected from discrimination and retaliation based on the genetic information (and that of family members), just as other classes are protected. When dealing with genetic information discrimination and retaliation, it is important to know your “ACGTs.” We are here to help and ensure employees and employers do not get confused by the law. If you need assistance, do not hesitate to contact us.
We hope you and your family stay safe and healthy.