Most people are generally aware of the characteristics that can be used to discriminate against an employee—for example, race, gender, or national origin. One factor used to discriminate that is perhaps less known is genetic information. Genetic information is any information about an individual’s (or their family members’) genetic tests, family medical history, or unborn children. While this may seem to be an unusual factor to discriminate against, it does happen with depressing regularity. So, if it happens to you, it’s crucial to be aware of your options.
The Genetic Information Nondiscrimination Act (GINA) was passed at the federal level in 2008. It bars any kind of unfair treatment from an employer that is based on factors related to genetic information, from hiring to firing. South Carolina has its own Human Affairs Law, which bars employment discrimination based on several characteristics, including genetic information, but given that the Human Affairs Commission (HAC) works in tandem with the federal Equal Employment Opportunity Commission (EEOC).
While genetic information is a somewhat narrow axis on which to discriminate, it can profoundly affect a worker’s prospects if an employer decides to act. There are certain situations in which an employer is entitled to know certain genetic information about a worker. For instance, the Act lists six different exceptions to confidentiality, such as collecting genetic information as part of the paperwork for FMLA leave, or as part of an employee health program. But regardless of how the employer learned the information, it cannot be used as the impetus for negative employment actions.
If you have been discriminated against because of your genetic information or genetic testing results, it is important to know that you do have recourse against your employer, if you can establish a cause of action. As with any employment discrimination case, the best way to first try to remedy the issue is attempt to settle it in-house, with your Human Resources department or another mediator. Only if this is not possible should you file a charge with the HAC or the EEOC.
It is important, however, to file as soon as possible, given that the statute of limitations on doing so. As a general rule, you have 180 days from the date of the alleged incident in which to file your charge and get the process started. However, it can be extended up to 300 days if a “state or local agency” enforces a law that bars discrimination on the same basis. For example, if you file your claim with the EEOC under the GINA, you will usually have 300 days in which to do so because the South Carolina Human Affairs Commission enforces South Carolina’s version of an anti-genetic information discrimination law.
Contact A South Carolina Employment Discrimination Attorney
We hope you better understand what discrimination based on genetic information is. Genetic testing can give us information on our health risks and history that one might never have discovered otherwise. The information we receive should be used for our benefit—not to our detriment. If your employer has used it in an unethical or inappropriate way, you have a right to seek redress. Attorney A. Christopher Potts and the firm of Hitchcock & Potts have years of experience in these matters, and we will work hard for a good outcome in your case. Contact our offices today to set up a consultation.