A Primer on GINA
Genetic Information, Employment Discrimination, and the LawIn May 2013, actress Angelina Jolie announced that she underwent a preventive double mastectomy after learning through genetic testing that she carries a genetic mutation (BRCA1), which significantly increases her risk of breast and ovarian cancer. The very same month, the Equal Employment Opportunity Commission (EEOC) brought the first lawsuits it ever filed alleging genetic discrimination under the Genetic Information Nondiscrimination Act (GINA).
This relatively new federal law, which was passed in 2008, prohibits employers with 15 or more employees from discriminating against applicants or employees because of their genetic information. Massachusetts’ anti-discrimination law, which applies to employers with six or more employees, also prohibits discrimination on the basis of genetic information. Genetic information includes, for instance, information about an individual’s genetic tests and the genetic tests of family members, as well as information related to an individual’s family medical history. This means that employers cannot request genetic information of applicants or employees and cannot use genetic information as a basis for employment decisions such as hiring, firing, pay, promotion, and other terms or conditions of employment.
GINA protects individuals, like Jolie, from being discriminated against because an employer believes they are at an increased risk of developing certain medical conditions, such as cancer. Jolie’s genetic information, however, can be found in publicly available sources, which falls within one of GINA’s narrow exceptions.
On May 7, 2013, the EEOC filed its first-ever lawsuit under GINA against fabric distributor Fabricut Inc., which had offered a temporary employee, Rhonda Jones, a permanent job subject to a pre-employment drug test and physical. As part of her medical examination, which was conducted by a third-party medical examiner, Jones was required to fill out a standard questionnaire, which asked her to disclose family medical history, such as whether there was a history of heart disease, hypertension, cancer, diabetes, arthritis, or mental disorders in her family. Fabricut rescinded its job offer after Jones’ medical examination resulted in the conclusion that she needed further evaluation to determine whether she suffered from carpal tunnel syndrome.
The EEOC filed a lawsuit claiming that Fabricut violated GINA when it asked for Jones’ family medical history in its post-offer medical examination (and violated the Americans with Disabilities Act when it refused to hire her because it regarded her as disabled). Fabricut immediately settled the case for $50,000.
In its press release about the Fabricut settlement. The EEOC noted that one of the six national priorities identified in its strategic enforcement plan is emerging and developing issues in equal-employment law, which includes genetic discrimination. Thus, it came as no surprise when, on the heels of this lawsuit, on May 16, 2013, the EEOC filed its first-ever class-action lawsuit under GINA against Founders Pavilion Inc., a nursing and rehabilitation center. Similar to the Fabricut situation, the EEOC claimed that Founders violated GINA by requesting family medical history from prospective and current employees as part of its pre-employment, annual, and return-to-work medical exams. The EEOC also alleges that Founders violated the Americans with Disabilities Act by withdrawing offers of employment based on the results of post-offer medical exams.
In light of the EEOC’s recent heightened interest in enforcing employee rights under GINA, employers should take steps to reduce their risk of liability. Obviously, employers should be careful to ensure that they do not inquire about an applicant’s or an employee’s genetic information.
Another way employers can reduce their risk is to include the following cautionary language on all forms requesting medical information about applicants or employees: “The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”
This safe-harbor provision from the GINA regulations provides a level of protection because genetic information received in response to a request for medical information, such as those pursuant to the Americans with Disabilities Act or the Family Medical Leave Act, will be deemed inadvertent and, thus, not a violation of GINA. Finally, the two recent cases filed by the EEOC illustrate the importance of employers working with their third-party medical providers to ensure that the providers’ practices do not violate GINA by requesting family medical history or other genetic information.
Just as Angelina Jolie took preventive measures to reduce her risk of cancer, employers can take preventative steps to reduce their risk of facing a lawsuit for genetic discrimination.
Karina L. Schrengohst, Esq. is an attorney at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor and employment law firm; (413) 586-2288; [email protected]