Prevent Genetic Discrimination in Employment

Genetic discrimination in employment occurs when an employer treats a person differently because they have a gene that causes or increases the risk of an inherited disorder. Many people fear that employers will attempt to reduce health care costs by terminating employees with genetic markers for costly disorders. Since a person's genes are unchangeable, and everyone is at risk of being a victim, the public favors remedies for victims of genetic discrimination.

The Genetic Nondiscrimination Act of 2008

Congress passed the Genetic Information Nondiscrimination Act of 2008 (GINA) after several employers performed genetic tests on employees without their knowledge or consent and generated a public outcry. GINA, which applies to employers with 15 or more employees, prohibits discrimination against employees and job applicants because of their genetic information. The law restricts employers from requesting or purchasing such genetic information and asking employees or applicants about the health of their relatives; it also limits employer disclosure of employees’ genetic information.

EEOC and State Law Trends

Since GINA became effective in November 2009, many charges of genetic discrimination (including charges that also allege violations of Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, or the Equal Pay Act) have been filed with the Equal Employment Opportunity Commission (EEOC). Multiple states, such as California, Illinois, Nebraska, and Virginia, have enacted their own genetic discrimination laws. Rapid scientific advances in identification of genetic markers may lead to more discrimination claims, so educational institutions must take proactive measures to help ensure GINA and state law compliance.

Avoid Genetic Discrimination Claims

To help your K-12 school, college, or university avoid claims of genetic discrimination:

• Understand the definition of genetic information. Schools may conduct pre-employment physical exams as long as they don’t inquire into family medical history.
• Guard access to genetic information. Employers can lawfully receive genetic information in many situations, such as an employee’s participation in a wellness program or documentation of a disability. In these cases, the employer must keep all genetic information in a confidential medical file.
• Realize that exceptions to GINA are narrow. Federal regulations establish that an employer overhearing a conversation between employees about genetic information is permissible; however, an employer actively listening to such a conversation violates GINA.
• Consult legal counsel. Review your policies and practices related to employees’ genetic information with a qualified employment attorney, especially if your state imposes nondiscrimination obligations separate from GINA.