New Jersey Employment Lawyer Blog
On May 21, 2008, President Bush signed the Genetic Information Nondiscrimination Act (GINA”) of 2008. The statute had previously passed the Senate unanimously and the House by a 414 to 1 vote. Upon the President signing it, GINA went into effect immediately.
The Genetic Information Nondiscrimination Act prohibits discrimination on the basis of genetic information with respect to health insurance and employment. Congress passed it in recognition that there are great opportunities for medical advancement from sequencing the human genome and other genetic advances. However, those advances are threatened by the potential for employers and health insurance companies to misuse genetic information to discriminate. Congress noted the historical discrimination and oppression of individuals who were presumed to have genetic defects, specifically mentioning mental retardation, mental disease, epilepsy, blindness, and hearing loss in the statute. Congress also recognized the prevalence of genetic discrimination in the workplace.
As it applies to the context of the workplace, the Genetic Information Nondiscrimination Act makes it unlawful to use genetic information as a reason to refuse to hire or fire, or to discriminate against any employee with respect to compensation or other terms, conditions, or privileges of employment. It also prohibits employers from using genetic information to limit, segregate, or classify employees in a way that deprives employees of job opportunities, or otherwise adversely affects them. With limited exceptions, it also prohibits employers from seeking genetic information regarding an employee or a family member.
The Genetic Information Nondiscrimination Act also prohibits retaliation, by making it illegal to discriminate against anyone who opposes a violations of the Act. It also requires employers that have genetic information about an employee to maintain that information in a separate confidential medical file, and limits an employer’s right to provide genetic information about an employee to anyone else.
GINA defines a “genetic information” to include a disease or disorder of an individual=s family member, as well as information revealed in an individual’s genetic tests or genetic tests of an individual’s family member, other than information about gender or age. It defines a “family member” very broadly, including any dependent, and any first, second, third, or fourth‑degree relative.
An individual who prevails in an employment case under the Genetic Information Nondiscrimination Act case potentially receive damages for lost salary and benefits, as well as emotional distress damages, attorneys fees, and costs of litigation. Like many other federal employment discrimination laws, an individual who has a claim under the Genetic Information Nondiscrimination Act must file a complaint with the United States Equal Employment Opportunity Commission (“EEOC”) and receive the A “right to sue” before he or she can file a federal lawsuit.
Jonathan I. Nirenberg is an employment law and civil rights lawyerin New Jersey and New York.