One federal law that protects employee rights in the workplace that is relatively unknown by most workers is the Genetic Information Nondiscrimination Act or GINA. This law was enacted in 2008 and signed into law by former President George W. Bush. It protects employees against genetic discrimination in employment and in their health insurance. Under this law, employers are prohibited from making employment decisions based on an employee’s family medical history or genetic information at any stage of employment and must also keep any genetic information they might inadvertently receive confidential and separate from their employees’ other records. Here is some information about GINA from the attorneys at Swartz Swidler.
What Is GINA?
GINA is a federal law that prohibits employers and health insurance companies from discriminating against people at work and in their health insurance based on their genetic information. It also protects employee and family privacy in their genetic information.
GINA and Employment
Employers cannot discriminate against applicants or employees based on their genetic information. This includes a prohibition against asking for, requiring, or purchasing the genetic information of their applicants or employees with a few limited exceptions. Genetic information cannot be used by employers to make any employment decisions during any phase of employment, including job assignments, hiring, terminations, promotions, or others. GINA is enforced by the Equal Employment Opportunity Commission and applies to employers with 15 or more employees and their employees. It also covers labor organizations, employment agencies, state and federal governments, and employment training programs.
Exceptions to GINA
GINA includes several exceptions to the prohibition on acquiring genetic information, including the following:
- Inadvertent requests of family medical history information through water-cooler talk
- Voluntary, limited information needed for wellness programs that is kept confidential
- Information requested to certify Family and Medical Leave Act leave
- Inadvertent acquisition of information through purchasing documents
- Genetic monitoring following exposure to toxic substances in the workplace
- DNA analysis conducted for law enforcement purposes
There are strict requirements for each of these exceptions before they will apply, however.
Confidentiality of Genetic Information
Any genetic information an employer obtains under an exception to GINA must be maintained confidentially in separate files away from the employee’s other personnel records. Employers are also prohibited from disclosing the genetic information they might obtain about employees to others with the following exceptions:
- Disclosure to the employee upon his or her written request
- Disclosure pursuant to a court order for specific genetic information, but the employee must be informed about the information that will be disclosed and the court order
- Disclosure of relevant information to government investigators who are investigating whether the organization is complying with GINA
- Disclosure made in connection with certifications under the FMLA or state leave laws
- Disclosure to the local, state, or federal government about a contagious disease that presents an immediate danger of life-threatening illness or death
Under GINA, employers cannot exclude certain employees from their employer-provided health insurance coverage based on their genetic information or family medical history. However, the protections do not extend to other types of benefits that might be offered by the employer, including short- or long-term disability, life insurance, or long-term care insurance. Employers with fewer than 15 employees are also not covered by this law. GINA also does not cover employees who receive insurance through the military or the federal government. However, other policies and laws might offer additional protection against discrimination based on genetic information in addition to GINA.
Potential Legal Remedies for Violations of GINA
The potential legal remedies for violations of GINA include the following:
- Lost wages
- Backpay
- Job reinstatement
- Non-economic losses
- Punitive damages
- Reasonable attorney’s fees
- Expert witness fees
- Injunctive relief
How Reports of Violations Are Made
GINA is enforced by the Equal Employment Opportunity Commission. People who believe that their employers have violated this law can file complaints with the EEOC. People who believe that their rights have been violated by their health insurance companies should contact the health insurance commissioner of their state. Unlike claims under Title VII of the Civil Rights Act of 1964, there is no cause of action for disparate impact discrimination when facially neutral policies cause disparate treatment of certain groups based on their genetic information. Instead, GINA complaints are based on direct violations of this law.
People who believe that their employers have violated GINA must act quickly. Under the EEOC’s deadline, complaints must be filed within 180 days of when the discriminatory act occurred. If an employee waits too long to file a GINA complaint, he or she might be barred from pursuing legal remedies.
Once the EEOC receives the complaint, it will conduct an investigation. If the EEOC determines that a violation occurred, it might either choose to prosecute the case on the employee’s behalf or provide the employee with a right-to-sue letter. Employees who receive right-to-sue letters can file complaints against their employers in federal court.
If the EEOC finds that a violation did not occur and dismisses the case, the employer is still prohibited from engaging in any retaliatory action against the employee based on his or her complaint. If an employer retaliates against the employee for complaining, the employer may be liable for retaliation or wrongful termination separately from the GINA action.
Talk to Swartz Swidler
If you believe that your employer misused your genetic information, took adverse action against you based on your family medical history, or wrongfully disclosed your genetic information to others, you should consult an employment discrimination attorney as soon as possible. The lawyers at Swartz Swidler can review your case and explain whether it has legal merits. To learn more about your rights and the remedies that might be available, call us today at 856-685-7420.
