On May 21, President George W. Bush signed into law the long-awaited Genetic Information Nondiscrimination Act (GINA).  First introduced 13 years ago, the legislation prohibits discrimination based on a person’s genetic information by both employers and insurers. The employment measure, which gives employees a new federal right of action, is set to go into effect in 18 months.

The Basics: What does the Act do?

Much of the law as it pertains to enforcement and remedies is drawn from other federal employment laws, including Title VII and the Civil Rights Act of 1991. As with Title VII claims, employees claiming discrimination or retaliation under GINA will first be required to file a charge with the Equal Employment Opportunity Commission (EEOC)  before bringing suit. The law provides for jury trials in cases of intentional discrimination and caps compensatory and punitive damages at $300,000 or less per violation based on the size of the employer. Additionally, successful claimants can win equitable relief in the form of back and front pay. Unlike Title VII, GINA does not recognize disparate impact claims, meaning that employers are not liable for neutral employment practices that have an unintended adverse impact. GINA also covers federal and state government employees.  The Act does not preempt any federal or state law that provides equal or greater protection against genetic discrimination. 

The Act was designed to address concerns that fears of job loss and higher insurance premiums have discouraged individuals from taking genetic tests, a decision which inhibits scientific understanding of disease and disease prevention, diagnosis and treatment. It also comes in response to the growing direct-to consumer genetic testing market, which may expose more individuals to genetic bias. 

Example

Under GINA, employers are liable for discriminatory conduct based on an employee’s genetic information. If an employer knows, for example, that an employee’s father died of a heart attack at age 45, the employer is prohibited from hindering that employee’s advancement by withholding promotions based on that information. The employer cannot use that information to make compensation decisions, and the employee cannot be terminated because of his perceived susceptibility to a heart attack. The employer is further prohibited from ordering the employee to undergo genetic testing to determine his risk of heart disease.

Exceptions: Is the Act too broad?

GINA provides exceptions for genetic information obtained through Family and Medical Leave Act processes and inadvertently, exempting employers from liability based on these disclosures. Despite this, employer representatives are concerned that the “inadvertent” exception is insufficient. Many argue that the Act is unclear on when acquisition of an employee’s genetic information will leave an employer vulnerable to a claim of genetic bias.  Other common examples include information obtained in the form of a disclosure of a parent’s illness on an employee’s leave request or a visit to a hospitalized employee.  Under GINA, such a disclosure would constitute genetic information. Similarly, information obtained under other federal laws (the Americans with Disabilities Act, for example) could expose an employer to GINA liability. 

Compliance: What does the Act require of employers?

To be in compliance with GINA, employers must treat genetic information as they do confidential medical records.  Such records must be filed apart from employee personnel records. Compliance with the ADA’s confidential medical records provision is sufficient for compliance with GINA. Under the law, hiring, firing, pay and other personnel decisions cannot be made on the basis of an individual’s genetic information. Compliance with GINA is not necessarily enough, however, as the Act does not preempt other federal and state laws against genetic bias. 

More than 30 states already have laws prohibiting genetic discrimination.  Among the states with such laws are New York, the District of Columbia, California, Maryland and Virginia. All five jurisdictions prohibit genetic discrimination from being used to make hiring and firing decisions. Together these laws have resulted in almost no documented litigation. 

Child Labor Law Provision

Included in GINA is a short provision that increases the maximum civil penalties for federal child labor and wage-and-hour law violations. The provision went into effect in May. Under the new law, the maximum penalty for violations of the child labor provisions of the Fail Labor Standards Act (FLSA) increased ten percent to $11,000 per employee subject to the violation. The maximum penalty for any violation that causes the death or serious injury of an employee under 18 also increased, from $11,000 per violation to $50,000 per violation. If the violation is repeated or willful, the maximum penalty jumps to $100,000.

The provision also increases the maximum civil penalties for wage-and-hour law violations.  The maximum penalty for repeated or willful violations of the FLSA’s wage and overtime provisions increased ten percent to $1,100 per violation. While the laws themselves remain the same, the provision’s increased penalties underscore the importance of employer compliance and workplace safety.  

If you are interested in learning more about Genetic Information Nondiscrimination Act, please contact Darrell S. Gay or any member of Arent Fox's Labor and Employment Practice in New York, Los Angeles or Washington, DC.

Darrell S. Gay
darrell.gay@arentfox.com
212.457.5465