You can probably be fired because your employer doesn’t like the jeans you wear, but you cannot be fired because your employer doesn’t like the genes you inherited. You may know that Florida is considered an “at will” employment state, where employers can fire employees at will – at any time, for any reason – with some limited exceptions. You probably are aware that state and federal anti-discrimination laws prohibit employment discrimination on the basis of race, sex, national origin, religion, age, and disability. But did you know that federal law prohibits discrimination on the basis of your genetic information? That’s right – it’s illegal to fire someone (or take other adverse actions) simply because they have or may be genetically predisposed to inherit a disease, medical condition, perceived “defect” or other trait deemed undesirable by an employer.
The Genetic Information Nondiscrimination Act (“GINA”) took effect November 21, 2009, to prevent potential abuse of genetic information to discriminate in health insurance and employment. Despite the many positive advances that have resulted from groundbreaking genetics research, the United States has a dark history attached to early genetics research. The early science of genetics became the basis of State laws that provided for the sterilization of persons having presumed genetic “defects,” the first passed in Indiana in 1907. By 1981, a majority of States had adopted sterilization laws to “correct” apparent genetic traits or tendencies. Because some genetic traits are most prevalent in particular racial and ethnic groups and genders, members of a particular group may be stigmatized or discriminated against as a result of that genetic information. The recent explosion in the science of genetics, and the history of sterilization laws by the States based on early genetic science, compelled Congress to implement protections as it relates to employment (in Title I) and health insurance (Title II).
In passing GINA, Congress relied on examples of genetic discrimination in the workplace, where employers instituted procedures seeking information about undesirable “defects” or “abnormalities,” or predisposition to future defects, in their employees. The statute specifically references the use of pre-employment genetic screening that was at issue in the seminal lawsuit of Norman-Bloodsaw v. Lawrence Berkeley Laboratory. This suit was brought by 7 current and former employees of Lawrence Berkeley Laboratory (LBL), a research facility operated by the Regents of the University of California pursuant to a contract with the U.S. Department of Energy. The Department required its contractors such as LBL to perform “preplacement examinations” which included testing of all applicants for syphilis, testing of black applicants for sickle cell trait, and testing of women for pregnancy. Another significant example occurred at Burlington Northern Santa Fe Railway Co., which secretly tested workers for a genetic defect that can predispose a person to carpal tunnel syndrome, and also screened workers for common genetic precursors for diabetes and alcoholism.
Pursuant to GINA, protected genetic information includes an individual’s genetic tests, the genetic tests of family members, and the manifestation of a disease or disorder in family members of such individual (i.e family medical history) – basically a person’s genetic characteristics or any piece of medical history. Protected information does not include information about the sex or age of an individual. GINA applies to employers, employment agencies, and labor organizations, and makes it unlawful for these entities to discriminate against an employee with respect to any term or condition of employment or to otherwise adversely affect the status of an employee because of the employee’s genetic information; or for them to request, require or purchase genetic information with respect to an employee or a family member of the employee (with some limited exceptions such as FMLA compliance); and requires confidential treatment of an employee’s genetic information. GINA also makes it unlawful to harass an employee regarding their genetic information, and to retaliate against an employee who complains about or makes a claim for genetic discrimination. Employees cannot be pressured to “voluntarily” make their genetic information known to their employer, even for purported positive purposes, such as an employer wellness program, and cannot be punished for refusing to participate in such a voluntary program.
GINA explicitly adopts the procedures and remedies made available under Title VII of the Civil Rights Act as it relates to discrimination claims on the basis of race, color, sex, national origin, and religion (beginning with filing an administrative charge with the Equal Employment Opportunity Commission). Successful claimants can recover pecuniary damages, emotional distress damages, potentially punitive damages, as well as recovery of attorneys fees and court costs.
GINA has been in effect for over 8 years, and the EEOC receives increasing numbers of claims for genetic discrimination every year, but there is a perception that such claims are underreported because of a lack of awareness of the protections provided by GINA. The New York Times recently published an editorial bemoaning the purported lack of any federal protections for employees’ health data, completely ignoring GINA! So now you know something that the New York Times apparently does not know:
An employer may never use genetic information to make an employment decision.
Protect your genes.
Mary Meeks has practiced law in Central Florida for nearly 30 years and has the highest rating by the Martindale-Hubbell National Lawyer’s Registry. She represents individuals, small businesses and Fortune 500 companies. Ms. Meeks is an accomplished civil trial lawyer who currently concentrates her practice in employment law, including cases involving discrimination based on race, color, national origin, age, disability, religion, gender, pregnancy, sexual orientation, gender identity, sexual harassment and retaliation. For more information, www.MaryMeeksLaw.com