One relatively recent phenomenon in employment discrimination is attempting to discriminate on the basis of a person’s genetic information, such as family history of disease or information about biological parentage. One might imagine that this sort of discrimination is hard to prove and/or discipline, but there has been some legislation passed to help address the issue. The Genetic Information Nondiscrimination Act of 2008 (GINA) sets out potential recourse if you are a victim of mistreatment on this score.
Basic Provisions of the Genetic Information Nondiscrimination Act
The GINA sets out prohibitions against discrimination in either employment or health insurance based on the genetic information of a particular applicant. Title II is the part of the act enforced by the Equal Employment Opportunity Commission (EEOC). Title II specifically bans disclosure of employees’ genetic information in all but a few exceptional cases. Title II also sets regulations on all covered entities (generally employment agencies, apprenticeship programs, labor organizations and the like) that prohibit buying, requesting or requiring employees’ genetic information.
Genetic information may not be used in any circumstances for purposes of harassment, discrimination, or the creation of a hostile work environment. Common teasing does not rise to that level, but a systematic and/or persistent campaign of insult, harassment, ostracizing or any behavior in the same vein can constitute a hostile work environment, which is actionable.
Requests For Genetic Information
It is important to keep in mind that while literal genetic information is covered under the Act, so are requests for such information—after all, such requests may be used to discriminate against employees almost as easily as the information itself. For example, a request to see the results of a pregnant woman’s paternity test might give rise to rumors of infidelity in her marriage, which could be deleterious to her career. There is almost no occasion where genetic information would be relevant to one’s ability to work, and as such, there is almost no occasion where one would be permitted to require it.
There are six exceptions under which a covered entity might be able to request genetic information, but even the requests made under such exemptions must follow the Act in every other respect. The exceptions are:
- Company health and wellness programs may request genetic information if it is made clear that its grant is voluntary
- Accidental disclosure is not a breach of GINA, though it may be a breach of that employee’s privacy under another regulation
- If the reason for an FMLA request is to manage a serious illness (either yours or a close family member’s), certain genetic information may be requested to complete the application
- Comparison markers may be taken to guard against contamination in workplaces that handle DNA evidence
- Genetic information may be requested to test for the presence of toxins, if such exposure is common in the workplace
Get Help From an Experienced Employment Law Attorney
While it may seem like a niche issue, genetic information is a very real basis for discrimination. If it happens to you, you have every right to seek redress. Attorney A. Christopher Potts and his Charleston, SC employment law firm of Hitchcock & Potts can help you seek the compensation you may be owed.
Contact us today for a free consultation on your case.