By Anthony R. Eaton and Sarah Scott

Passed last year and signed into law by President Bush, the Genetic Information Nondiscrimination Act (GINA) will go into effect this November. Title I of GINA prohibits health insurance companies from discriminating against individuals based on their genetic information, and Title II prohibits such discrimination in the workplace. “Genetic information” is defined as an individual’s genetic tests or tests of his or her family members, as well as the medical history of an individual’s family with respect to any diseases or disorders.
Congress passed the Act in response to what it called the “current explosion in the science of genetics.” The hope is that the new law will foster medical research in the burgeoning field by offering protection to potential genetic testing participants who might otherwise be wary of disclosure of their medical records. The new protections may also allow for early detection of medical problems, and reduce the likelihood that at-risk individuals will contract or develop certain medical conditions.

Employer Obligations
Title II pertains to employers and has four prohibitions. First, employers may not engage in employment discrimination based on genetic information – i.e., employers may not terminate, refuse to hire, or otherwise “discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment” based on the employee’s genetic information. Furthermore, employers cannot use such information to “limit, segregate, or classify the employees… in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee.” Second, employers cannot retaliate against an employee who vocally supports the provisions of GINA or who participates in any investigation or proceeding under the Act. Third, employers cannot disclose any employee’s genetic information to any third party except under very narrow circumstances, such as to comply with certification provisions of family and medical leave laws. Finally, employers may not collect employees’ genetic information, with some exceptions (e.g., if the employer acquired the information inadvertently). If an exception does apply, employers must be careful to keep all such records strictly confidential. It is important to keep in mind that GINA is intended only as a floor of protection – state laws that provide for equal or greater protection are presumably still valid. The Act applies to all employers who have 15 or more employees, and will be enforced by the EEOC. Employees who successfully bring suit under GINA may recover attorney fees, as well as compensatory and punitive damages, if they can prove intentional (rather than negligent) discrimination – though these are subject to dollar caps depending on the size of the employer.

California Law
California’s FEHA already prohibits employers from discriminating on the basis of genetic information, and state law goes even further than GINA to prohibit testing for the presence of a genetic characteristic. Since California laws on genetic nondiscrimination were already among the most protective in the country, GINA will likely have a minimal effect on employers in this state. However, it has yet to be determined how courts will treat any disparities between state and federal law in this area, so employers would be wise to ensure compliance with GINA as well as with existing state law.