The Genetic Information Nondiscrimination Act of 2008 makes it illegal for an employer to discriminate against employees or applicants because of their genetic information. But what does that mean, and how could it apply to you?
The Genetic Information Nondiscrimination Act
Commonly called GINA, the Genetic Information Nondiscrimination Act prohibits employers from discriminating based on genetic information. That includes the use of genetic information in making hiring decisions, and other entities are covered, too – including employment agencies, joint labor-management training and apprenticeship programs, and labor organizations.
What is Genetic Information?
Genetic information involves anything in a person’s DNA that could increase his or her chance of getting a disease or suffering from a condition. For example, health insurers could use information about a person’s DNA to refuse or deny coverage to that person – just like employers could use it to decide whether to hire or fire workers.
We all have parts of DNA that could increase or decrease our chances of getting certain illnesses, diseases or conditions.
How GINA Protects Workers
Employers can’t use a person’s DNA in employment decisions, including:
- Job assignments
- Any other term or condition of employment
Harassment Based on Genetic Information
GINA also prohibits employers from tolerating harassment based on a person’s genetic information. Like other forms of harassment, genetic information harassment can take the form of making offensive remarks about a person’s DNA. The law doesn’t cover simple teasing or minor, one-time incidents; instead, it refers to harassment that is so pervasive or severe that it creates a hostile work environment.
Retaliation After Genetic Information Discrimination
Just as it’s illegal for an employer to retaliate against an employee for reporting other types of discrimination, such as medical discrimination, racial discrimination and religious discrimination, it’s illegal to retaliate when someone reports genetic information discrimination. Employers can’t fire, demote or harass a worker for making this type of report.
Can an Employer Ask for Genetic Information?
For the most part, employers aren’t entitled to an applicant or worker’s genetic information. However, there are some ways that employers are legally allowed to acquire someone’s genetic information. Here’s a brief list of exceptions:
- Employers can obtain information inadvertently. If your boss overhears a conversation between you and someone else, and you’re discussing your genetic information, the employer hasn’t violated any laws. Likewise, if you volunteer information to your employer, that’s on you – not your employer.
- Employers can obtain genetic information through health services it offers, provided that you volunteered to participate in it and your employer can’t tie the information back to you.
- An employer can obtain your genetic information if it needs your medical history in order to comply with requirements outlined in the Family and Medical Leave Act or another, similar law.
- Employers can access publicly available genetic information about you.
However, even if your employer has this genetic information about you, it cannot use it to make employment decisions. The employer is also required to keep the information confidential.
About Employer Health Programs
If your employer offers a wellness program, it can ask you to fill out a health risk assessment questionnaire or participate in tests or screenings. However, your participation in the program must be voluntary, and you have to give your employer written consent to access your information before you undergo any testing. Only you and your medical professional or genetic counselor are authorized to view the information when it’s personally tied to you; if your employer wants it, it must accept the information in a way that doesn’t reveal your identity or the identity of any other participant.
What if Your Employer Violated GINA?
If you believe an employer violated your rights under the Genetic Information Nondiscrimination Act, you may want to call a Glendale employment lawyer immediately. You have up to 180 days to report the violation, so the sooner you call an attorney, the better.
Call us at 818-230-8380 for your free consultation with an employment attorney. We can answer your questions, talk about possible outcomes for your case, and develop a strategy that gets you the best possible results.