April 19, 2012

Genetic Discrimination in Employment: EEOC and GINA

The federal Genetic Information Nondiscrimination Act (GINA) was enacted in 2008, after years of lobbying to get Congress to respond to the emergence of genetic discrimination in employment and access to health insurance. Title I of the law addresses the use of genetic information in health insurance, while Title II prohibits genetic discrimination in the workplace against job applicants and/or employees (and applies to all employers with 15 or more employees). The federal Equal Employment Opportunity Commission (EEOC) is charged with enforcement of Title II of GINA, and also enforces, inter alia, the prohibition of discrimination on the basis of race, color, religion, national origin or sex under Title VII of the 1964 Civil Rights Act, and the protection for disabled individuals under the 1992 American with Disabilities Act (ADA). Prior to GINA, the resolution of claims of genetic discrimination found support in existing constitutional doctrines. In Norman-Bloodsaw v. Lawrence Berkeley Laboratory (9th Circuit, 1998), a case that predated GINA, where employees were subject to surreptitious genetic testing for and subsequent use of genetic information in a racially discriminatory manner, the court sustained claims of 4th Amendment violations as well as violations of the right to privacy under the 14th Amendment and Title VII violations. From the court opinion: "One can think of few subject areas more personal and more likely to implicate privacy interests than that of one's health or genetic make-up." In 2002, and also pre-GINA, the EEOC settled the case of genetic discrimination against the Burlington Northern and Santa Fe Railway Company under the ADA. A new EEOC GINA regulation took effect this month that further solidifies the inclusion of GINA into the repertoire of civil rights laws in the workplace, including Title VII and the ADA. Employers subject to GINA must now comply with record-retention requirements as rigorous as those that apply to the enforcement of Title VII and the ADA. These include standard retention periods for all records as well as specific preservation of records that pertain to a charge of discrimination filed under GINA. Recent statistics from the EEOC report that in 2011, of the 211 charges investigated by the EEOC, a quick comparison of outcomes that reflect factual determinations shows approximately 67% found no reasonable cause, while approximately 5% did find reasonable cause. We can expect that the further development of genetic susceptibility data will intersect with the workplace in complicated determinations of causation for claims of workplace-induced injury or disease; GINA will now provide some measure of legal protection where genetic information is either used to screen out job applicants or terminate employees based on genetic status. 

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