Everything You Ever Wanted to Know About the New Genetic Information Nondiscrimination Act (GINA)
Yesterday, President Bush signed what is arguably the first major employment law of the new century, the Genetic Information Nondiscrimination Act (GINA). The following are answers to FAQs about the new law.
What are the basics? As its name implies, the law is designed to protect individuals from discrimination based on genetic information. In a nutshell, GINA:
- prohibits discrimination based on genetic information in hiring, firing, compensation and other employment decisions;
- prohibits employers from collecting genetic information through workplace genetic testing or other means, with very narrow exceptions (e.g., monitoring the effects of hazardous workplace exposures);
- prohibits health insurers and plans from requiring genetic testing and from discriminating based on genetic information in enrollment and premium-setting; and
- imposes strict workplace confidentiality/disclosure rules on all genetic information.
Why was the law passed? Advocates pushed for GINA out of concern that people are hesitant to undergo genetic testing because they don’t want adverse results used against them by their employer or insurance company.
When does the law go into effect? GINA goes into effect 18 months from its enactment. The EEOC is required to issue final regulations within a year.
To whom does GINA apply? Like Title VII, GINA applies only to employers with 15 or more employees.
How will GINA be enforced? Most of GINA’s enforcement and damages provisions are identical to other federal employment laws already familiar to employers. As with Title VII claims, GINA claimants will be required to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) before going to court. The EEOC will then investigate and attempt to resolve the matter before either suing on the employee’s behalf or issuing a “right-to-sue letter” that allows the employee to file his or her own suit.
What are the penalties? Just like Title VII and Americans with Disabilities Act (ADA) cases, compensatory and punitive damages are capped at $300,000 or less, depending on the size of the employer. Plaintiffs may also be entitled to equitable relief including back pay and front pay.
Does GINA prohibit retaliation? Yes. Like Title VII, GINA prohibits retaliation against any employee who “has opposed any act or practice made unlawful” by the act or any employee who participates in any investigation, proceeding or hearing under GINA.
How does GINA apply to disparate impact cases? Here’s where GINA differs from Title VII. GINA specifically exempts “disparate impact” cases from coverage. Instead, the law gives Congress six years to appoint a commission to review scientific developments and make recommendations on whether to add liability for neutral employment practices that could adversely impact employees based on genetic information.
How does GINA affect an employer’s right to obtain FMLA certification from an employee? It doesn’t. Although GINA generally prohibits an employer from acquiring genetic information, there are certain exceptions, including when that information is obtained in the FMLA context.
What should an employer do if it permissibly obtains genetic information? The employer should keep the information as a confidential medical record in the same manner as it treats medical information under the ADA.
How do employer advocates feel about GINA? Generally, it appears that practically everyone lauds the intent behind the new law. However, some employer groups have expressed concern over the likelihood of increased litigation, confusion that could result from GINA’s failure to preempt state laws and uncertainty about when an employer’s inadvertent acquisition of genetic information might lead to liability.
What are employee advocates saying? GINA’s sponsors called the law a “groundbreaking protection of civil rights.” When the bill was first introduced, Ted Kennedy called it “the first major new civil rights bill of the new century.” Added Louise Slaughter (D-NY): “This is a tremendous victory for every American not born with perfect genes — which means it’s a victory for every single one of us.”
June 5th, 2008 at 9:24 am
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