DNA2.jpgIn the 1997 science fiction film Gattaca, the main character Vincent lives in a futuristic world where success is based on an individual’s genetic profile instead of experience or education.  Because Vincent’s genes are considered inferior, he assumes the identity of a genetically superior man in order to avoid discrimination based on his genetics.  While the plot of Gattaca may seem to have no basis in reality, genetics have actually impacted our lives for the last century.  For example, genetic testing has been used for decades to detect genetic disorders such as Down’s syndrome or Tay-Sachs.  Recently, actress Angelina Jolie discovered through genetic testing that she carries a gene mutation known as BRCA1 which increases the risk of breast and ovarian cancer.

Yet, despite the prevalence of genetic testing, many people are still reluctant to undergo testing because they believe the results could subject them to genetic discrimination by their employers.  In response to this concern, Congress passed the Genetic Information Nondiscrimination Act (GINA) in 2008 which prohibits employment discrimination and harassment based on genetic information.  This law also makes it illegal to retaliate against an applicant or employee for opposing discrimination, filing a discrimination complaint or participating in discrimination investigation or lawsuit.  The California legislature followed suit a few years later when it added “genetic information” to the Fair Employment and Housing Act’s list of protected classifications.   

The U.S. Equal Employment Opportunity Commission (EEOC) claims that since GINA was enacted, it has received over 700 complaints alleging GINA violations.  The EEOC recently settled its first GINA lawsuit against Oklahoma employer Fabricut, Inc.  According to the lawsuit, Fabricut extended a job offer to applicant Rhonda Jones and sent her to a pre-employment drug test and physical which included a test for carpal tunnel syndrome (CTS).  During the exam, Jones was also asked to disclose whether certain medical conditions such as cancer and diabetes were in her family medical history.  Ultimately, the company rescinded Jones’ job offer based upon information it learned through the pre-employment tests.  The EEOC concluded that this conduct violated GINA. 

Given the EEOC’s recent enforcement efforts and the identification of genetic discrimination as an emerging employment issue in its Strategic Enforcement Plan, employers are encouraged to evaluate the manner in which they acquire and handle applicant or employee genetic information to make sure they comply with the law. 

GINA generally prohibits employers from requesting, requiring or purchasing an applicant or employee’s genetic information.  For example, a request for genetic information may include conducting an Internet search to look for an individual’s genetic information, or actively listening to third-party conversations or searching an individual’s personal property for the purpose of obtaining genetic information.  In addition, employers may not ask for family medical information as part of a medical examination of an applicant or employee.  An employer must tell its health care providers to not collect genetic information as part of an employment-related medical examination.  If the employer finds out family medical histories are being collected, it must take steps within its control to stop this practice.  This can include switching to another medical provider.

However, employers may obtain genetic information without violating GINA under any of the following six narrow exceptions:

  1.  Where the information is acquired inadvertently;
  2.  As part of health or genetic services, including wellness programs, provided on a voluntary basis;
  3. In the form of family medical history, to comply with the certification requirements of the Family and Medical Leave Act, state or local leave laws, or certain employer leave policies;
  4. When the information comes from sources that are commercially and publicly available;
  5. As part of genetic monitoring that is either required by law or provided on a voluntary basis; and
  6. By employers who conduct DNA testing for law enforcement purposes such as a forensic lab or for human remains identification.

As an added measure of protection, an employer who makes a request for health-related information (e.g. to support a request for sick leave) should warn the employee and/or health care provider from whom it requested the information to not provide genetic information.  If this type of warning is provided, any genetic information that is obtained will be considered inadvertently acquired and, therefore, not in violation of GINA.