Genetic Information Nondiscrimination, Part 1
In her 2009 performance review, Pamela Fink’s employer MXenergy, told her that she was doing an “exemplary job.” In October 2009, Fink took two weeks of paid medical leave and underwent a double mastectomy. In January 2010, she had reconstructive surgery. When she returned to work, she informed her employer that due to a family history of breast cancer she had made the decision to have the double mastectomy after genetic tests showed that she carried the gene for breast cancer. On March 25, 2010, she was fired from her job. On April 27, 2010, Fink filed complaints with the Equal Employment Opportunity Commission and the Connecticut Commission on Human Rights and Opportunities.
With developments in the field of genetics, the decoding of the human genome, and advances in medicine, genetic tests now exist that can tell if an individual is at risk for developing many specific disorders or diseases. Concerns have arisen, however, about whether individuals can lose their health insurance coverage or their employment if insurers or employers have access to genetic information. Lucky for Fink, the Genetic Information Nondiscrimination Act (GINA) of 2008 became effective on November 21, 2009.
GINA applies to federal government employees as well as employees in the private sector. GINA was enacted to address these concerns by prohibiting discrimination based on genetic information and by restricting the acquisition and disclosure of such information. Title I of GINA addresses the use of genetic information in health insurance. Title II of GINA prohibits the use of genetic information in employment, prohibits intentional acquisition of genetic information about employees and applicants, and strictly limits disclosure of genetic information. This article will look at the provisions of Title II of GINA; next week’s Federal Legal Corner will examine the anti-harassment provisions.
Genetic information is defined as information about an individual’s genetic tests, genetic tests of family members and family medical history. Genetic information does not include information that an individual currently has a disease or disorder. Once a disease or disorder is manifest, that is the individual displays the characteristic signs and symptoms of the disease or disorder that may stem from a clear genetic cause, the individual’s genetic information is less relevant than whether that individual has an impairment that substantially limits a major life activity.
However, a person with a genetic predisposition to disease is not someone either with a disability or with a record of a disability. Therefore, GINA provides protection against discrimination that is not covered by the Rehabilitation Act or the Americans with Disabilities Act (ADA). GINA is actually a complement to these disability statutes in that workers are now protected against disability discrimination and against discrimination because of impairments they might develop. GINA prohibits discrimination on the basis of genetic information in any aspect of employment including hiring, firing, pay, assignments, promotions, etc. Genetic information may never be used to make employment decisions because it does not tell an employer anything about an employee’s current ability to work.
Like the ADA, genetic information is to be maintained in the same separate medical file in which medical information is required to be kept under the ADA. Congress did this to make sure that the confidentiality rule under GINA would not be unduly burdensome. Under the ADA however, an employer could obtain family medical history or conduct genetic tests after an offer of employment. Under GINA, such actions are prohibited. Family medical history is now protected because this information is often used to determine if an individual has an increased risk of acquiring a disease or disorder.