The Genetic Information Nondiscrimination Act of 2008 (GINA), protects employees from discrimination by health insurers (Title I of the Act) and employers (Title II of the Act) based on genetic information. As it relates to the employment context, it specifies what employment actions are prohibited and creates confidentiality requirements pertaining to medical information.
What Constitutes Genetic Information
Under GINA, genetic information means:
- Information about an individual’s genetic tests
- Information about the genetic tests of an individual’s family members
- Information about diseases or disorders that family members of an individual have had
- Any request for, or an individual’s receipt of, genetic services or participation in clinical research that includes genetic services
As used in these definitions, genetic services means:
- Genetic tests
- Genetic counseling
- Genetic education
Genetic tests mean an analysis of an individual’s DNA, RNA, chromosomes, proteins, or metabolites for the purpose of detecting genotypes, mutations, or chromosomal changes.
Expressly excluded from the definition of genetic information is information about an individual’s sex or age.
Conduct Prohibited by GINA
Under the Genetic Information Nondiscrimination Act of 2008 (GINA), it is unlawful for an employer or employment agency:
- To discriminate in hiring, firing, or any other terms or conditions of an employee’s employment based on the genetic information of the employee
- To request or require genetic information from an employee or a family member of an employee, or to purchase genetic information of an employee or a family member of an employee
There are numerous exceptions to the second provision, such as an inadvertent request for family medical history, instances in which the employee provides written authorization to the employer, and instances in which the employer purchases commercially and publicly available documents (such as newspapers and magazines) that include family medical history.
Under the Genetic Information Nondiscrimination Act of 2008 (GINA), it is also unlawful for a labor organization:
- To exclude or expel from membership, fail or refuse to refer for employment, or in any other manner discriminate against a member or deprive the member of employment opportunities based on his/her genetic information;
- To cause or attempt to cause an employer to discriminate against a member based on that member’s genetic information
- To request or require genetic information from an employee or a family member of an employee, or to purchase genetic information of an employee or a family member of an employee.
As was the case with prohibited acts of employers and employment agencies, exceptions exist as the law pertains to labor organizations as well, although the exceptions are not identical.
Finally, GINA prohibits retaliation against any employee for opposing any practice prohibited by the Act, for filing a complaint relating to a violation of the Act, or for assisting another individual with his/her complaint relating to a violation of the Act.
Remedies Available Under Title VII of the Civil Rights Act of 1964
Under federal law, if an individual is successful at trial and it is found by a judge or jury that the individual was the victim of unlawful employment discrimination, harassment, or retaliation, that individual is entitled to recover his/her back pay (lost wages), attorney fees and costs, and out of pocket expenses (for example the out-of-pocket cost of insurance if benefits were lost). Reinstatement (getting his/her old job back) is also available.
Compensatory damages (pain and suffering) and punitive damages (monetary punishment levied against the employer for discriminating) are available through Title VII; however, an individual is not entitled to such damages.
Compensatory damages are subject to the following monetary caps, based on the number of employees employed by the defendant-employer:
- Up to 100 employees: $50,000
- 101 – 200 employees: $100,000
- 201 – 500 employees: $200,000
- 500+ employees: $300,000
Read the full text of the Genetic Information Nondiscrimination Act of 2008 (GINA).