Beginning next year, the EEOC will take on responsibility for a newly created category of employment discrimination:  Discrimination or retaliation based on “genetic information.”

President Bush signed the legislation, entitled the Genetic Information Nondiscrimination Act (GINA), on May 21, 2008.  Its employment provisions become effective November 21, 2009.  The EEOC is to issue regulations by May 21, 2009. 

The employment provisions parallel much of Title VII, prohibiting employees from failing or refusing to hire, or from discharging, or from otherwise discriminating against any employee in the areas of compensation or other terms, conditions, or privileges of employment because of genetic information, or from limiting, segregating, or classifying employees so as to deprive or tend to deprive them of employment opportunities because of genetic information.

Like Title VII, GINA prohibits retaliation based on protected activity.  It also prohibits the acquisition of genetic information except under limited circumstances and for limited purposes.  As with Title VII, similar prohibitions apply to labor unions and employment agencies.

Unfortunately, GINA’s definitional provisions are rife with ambiguity.  For instance, GINA broadly defines “genetic information” as including not only information about an individual’s genetic tests, but those of his or her family members as well.  Family members, for purposes of the statute, include dependents and other relatives up to “fourth degree” familial relationships.  Even more certain to generate confusion is the statute’s categorization of any “manifestation” of a genetically related disease or genetic disorder in a family member as protected “genetic information.” 

An example of how the vague contours of the statute may create liability can be found in one of the exceptions to the prohibition on acquiring genetic information.  This exception applies when an employer “inadvertently requests or requires” family medical history of the employee or his or her family member.  But what is an “inadvertent request?”  Consider this common casual exchange:  An employee mentions to her boss she is stopping off at the hospital on her way home to visit her aunt, and the boss offers the cordially routine follow-up, “Oh, what’s wrong?”  If the answer is breast cancer or some other genetically linked disease, is this an acquisition of “genetic information,” and if so, is it a prohibited acquisition or is it “inadvertent?” 

Other exceptions in the statute are equally prone to confusion.  Employers may legitimately acquire genetic information if needed to comply with Family and Medical Leave Act certification provisions, but there is no similar exemption for participation in the interactive process under the Americans with Disabilities Act.  Similarly, employers are authorized to acquire genetic information to administer wellness programs and to monitor biological effects of toxic substances in the workplace, but only if numerous technical criteria are satisfied. 

GINA creates an enforcement scheme virtually identical to Title VII’s.  An individual claiming to have been wronged must first file a timely charge with the EEOC before suing in federal court.  Like Title VII, GINA imposes a cap of $300,000 (or less, depending on employer size) on compensatory and punitive damages.  But, unlike Title VII GINA does not allow for disparate impact claims, though it does provide that this question will be studied by a commission Congress will appoint in 2014.

The statute also amends the Employee Retirement Income Security Act and the Public Service Health Act to impose similar prohibitions on group health plans and health insurance issuers.  However, as emphasized in a recent report by the Congressional Research Service, these prohibitions pertain only to health insurance and, at least at present, do not impact long-term care insurance, life insurance, or short-term or long-term disability insurance. 

Because there has been virtually no reported litigation arising out of existing state laws prohibiting genetic discrimination, business groups opposed GINA’s enactment as “a solution in search of a problem.”  Impetus for the law lies primarily with a widely publicized EEOC settlement with Burlington Northern Railroad for allegedly requiring certain employees to submit to genetic testing.  In addition, advocacy groups cited anecdotal evidence of individuals refusing potentially life-saving genetic screening, purportedly out of concern that insurers and employers might someday use the test results against them.  Regardless of the rationale for this new statute, we can be sure that its contours will become clear only though future regulatory action and  litigation. 

Julia Turner Baumhart

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