The Genetic Information Nondiscrimination Act (GINA) is a federal statute that was enacted in 2008 to protect employees and other individuals from being discriminated against on the basis of his or her genetic information.
As genetic testing gets more advance, it is becoming more common for people to have their genetic information tested. For example, the BRCA1 and BRCA2 genes have been shown to increase the risk of breast and ovarian cancer. Some women with these genes have chosen to have preemptive surgery to remove breast or ovarian tissue to prevent cancers.
GINA prohibits insurers from charging higher premiums to an otherwise healthy person with a genetic disposition for a disease. Additionally, GINA prohibits employers from using an individual’s genetic information to make decisions about hiring, firing, job placement, or promotions.
GINA was necessary because many people with a family history of cancer or other diseases were afraid to get genetic testing. Because certain types of genes have a high likelihood of causing disease, there were fears that these genetic markers could be used against the person who carries them. For instance, if an employer knew that a job applicant had a genetic predisposition to cancer or heart disease, that information could be used to justify not hiring that person in case he or she gets sick later on.
Since the law is relatively new there have been few lawsuits regarding GINA around the country. The first case involving the law happened in 2013, after the Equal Employment Opportunity Commission (EEOC) sued a distributor in Oklahoma. That company required a job applicant to undergo a post-employment medical exam.
As part of the exam, the applicant was required to fill out a medical questionnaire which required her to provide information about her family medical history, including any instances of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis, or mental disorders.
The EEOC sued the distributor because GINA not only makes it illegal to discriminate against employees or applicants because of genetic information, but it also makes it illegal for employers to request, require, or purchase such information. Under the statute, the term “genetic information” also includes information about the diseases or disorders suffered by the employee’s family members or spouse.
The EEOC prosecuted a similar GINA case in 2014. In that case, a New York nursing and rehabilitation center agreed to pay $370,000 to settle its discrimination lawsuit. The company had also required family medical histories from potential employees during its post-offer, pre-employment medical screening. A third case in Pittsburgh was resolved in 2016 after the EEOC filed a similar lawsuit due to family medical history questions during its pre-employment medical screening.
Employees and job applicants should be aware that it is illegal under GINA for an employer to request their family medical history. This includes questions about extended relatives as well as questions about spouses, children, or parents. If an employer violates GINA, the company can be held responsible for damages in a subsequent lawsuit by an employee or job applicant.
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