On May 7, the United States Equal Employment Opportunity Commission (“EEOC”) brought (and quickly settled) its very first case under the Genetic Information Nondiscrimination Act (“GINA”). The complaint alleged that an employer had illegally gathered genetic information during job applicants’ medical exams.
GINA, which went into effect in 2009, prohibits the use of genetic information in making employment decisions. The Act prohibits, among other things, an employer’s use of the following information:
family medical history,
genetic information about an individual or their family member (such as whether they have an increased chance of developing cancer,
whether an individual or their family member has received or sought genetic counseling, and
whether an individual or their family member has been involved in research that includes genetic testing.
The case appears to be a precursor to a more aggressive approach by the EEOC to protect genetic privacy. Only nine days later, on May 16, the EEOC brought its second lawsuit pursuant to GINA. In this instance, a nursing home and rehabilitation center allegedly asked for genetic information during the hiring process. There does remain some exceptions in which an employer can request, require, or purchase genetic information.
GINA’s exceptions include: if an employer received the information inadvertently, if an individual received voluntary health or genetic services that an employer offers, or if an employer receives the information from sources that are “commercially and publically available” (such as magazines, books, and newspapers).
One slightly more complicated exception involves an employer requesting genetic information pursuant to the Family Medical Leave Act (FMLA). The FMLA requires certain employers to allow employees time off for health related reasons (including taking care of a spouse, parent, or child). In these instances it would not violate GINA to seek verification on the specific medical illness for which the employee is requesting leave.
Although an employer can request or acquire genetic information from these exceptions, they still cannot use the information in employment decisions. GINA also applies to employment agencies, labor organizations, and joint labor management committees controlling apprenticeships and trainings.
The apparent increase in attention to GINA correlates with the EEOC’s Strategic Enforcement Plan for Fiscal Years 2013-2016, which was approved on December 17, 2012. The plan lists six priorities, including “addressing emerging and developing issues.”
In light of two new lawsuits and an apparent focus of the EEOC to protect discrimination on the basis of genetic information, employers would be wise to confirm that they are in compliance with GINA. Employees should also be aware of their rights and not feel compelled to disclose genetic information to employers and potential employers, outside of limited exceptions.
Joshua Newville is an attorney and mediator based in Minnesota. He litigates employment and civil rights cases, serves as a mediator for civil disputes, and provides employment law advice.