Beginning with the passage of the Genetic Information Nondiscrimination Act in 2009, workplace discrimination that is based on a worker’s genetics is against the law. Employers are not allowed to require, disclose, purchase, or request a prospective or current employee’s genetic information or to make decisions based on genetic information. It is also illegal to harass workers based on genetic information. In addition, the New Jersey Law Against Discrimination also prohibits genetic information discrimination, and the state law applies to employers with fewer than 15 employees. If you have been the victim of genetic information discrimination, the attorneys at Swartz Swidler might be able to help.
What is the Genetic Information Nondiscrimination Act?
The Genetic Information Nondiscrimination Act of 2008 became effective in 2009. Title II of the law covers employers in the U.S. that have 15 or more employees. Under the law, genetic information that is covered by the act includes the following:
- Genetic testing of an individual
- Genetic testing of a worker’s family members
- A worker’s request for genetic services or the request of a family member
- A fetus’s genetic makeup that is being carried by a worker or a family member
- A family’s medical history
The law does not apply to people who already are impaired by genetic conditions such as cancer or diabetes. however, workers who have impairments are protected against discrimination based on their disability status under the Americans with Disabilities Act.
Employers are not allowed to base employment decisions on a worker’s genetic information in all employment aspects from hiring to firing. Harassment under the act includes offensive conduct that is pervasive enough to create an offensive or hostile work environment. It is also illegal to retaliate against workers who have filed complaints.
Exceptions to GINA
There are a few limited exceptions to acquiring information under GINA, including the following:
- When employers acquire genetic information inadvertently
- When individuals have provided the information in a health or wellness program
- When family medical histories are acquired for FMLA leave
- When the information is acquired from a public source
- Voluntary participation in genetic monitoring programs that are required under the law
- Labs that obtain genetic information to check for sample contamination
Safe harbor for inadvertent violations of GINA
In some cases, employers might have to ask for health information from employees which might lead to employers inadvertently acquiring their genetic information. Employers should warn their employees about GINA in these scenarios. The Equal Employment Opportunity Commission has provided guidance about the warning that employers should provide to their employees before they provide health information.
Get help from Swartz Swidler
Discrimination based on genetic information is unlawful. If you think that your employer has engaged in illegal genetic information discrimination against you, you should schedule a consultation with the employment lawyers at Swartz Swidler. Contact us today by filling out our online contact form.
