Genetic Discrimination in Employment

Genetic Discrimination Definition

Genetic discrimination in employment means unfair treatment of an employee or job applicant on the basis of genetic information, such as a predisposition to a disease based on family medical history or a genetic test.

Genetic discrimination in employment includes workplace harassment that creates a hostile work environment.

Genetics is a branch of biology that deals with genes, the basic units of heredity. Genes are transferred from one generation to the next at conception, one set from each parent. Humans have gene variations that could increase the risk of illness or disease.

Genetic Discrimination Laws

The genetic discrimination law at the Federal level is officially referred to as the Genetic Information Nondiscrimination Act of 2008 (GINA). Congress passed the Act to ease concerns that the increase in genetic testing as routine preventive health care could lead to discriminatory practices in employment and health insurance.

Title I of the Federal genetic discrimination law regulates health insurers. Title II regulates employers, which is what this article is about.

It is now illegal for employers bound by Title II to discriminate against employees or job applicants on the basis of genetics in any aspect of employment, including hiring, termination, pay and benefits. For example, such an employer may not fire an employee solely because a routine genetic test revealed that the employee has a predisposition to a certain illness and so, the employee might often miss work in the future.

The Americans with Disabilities Act and the Family and Medical Leave Act also restrict how employers use employee medical information.

Title II of the genetic discrimination law generally applies to both private- and public-sector employers with 15 or more employees, and to employment agencies, labor unions and joint labor-management training programs as well. (All are collectively referred to as "covered entities".) Title II is enforced by the U.S. Equal Employment Opportunity Commission (EEOC).

Some states already had their own genetic discrimination laws prior to GINA and others will likely follow the lead of the Feds by enacting their own. In states that have such laws, employees are protected by whichever law at the Federal or state level affords the most protection against genetic discrimination in employment. GINA sets only the minimum standards in the states, as do all Federal employment discrimination laws.

Genetic Discrimination Legal Recourse

According to the EEOC, "There are no situations in which it is permissible to use genetic information to make an employment decision." In fact, GINA makes it unlawful for an employer to even acquire an employee's genetic information, except when publicly available.

If you reasonably believe that an employer (or another covered entity) has harassed or otherwise discriminated against you on the basis of your genetic information, then you or your representative, such as your attorney, may file a genetic discrimination charge against the employer with the EEOC (or a state equivalent). "Employer" includes a boss, coworker, interviewer or any other employer representative.

Note: Although they have equal protection under GINA, Federal employees and job applicants follow a different complaint process for reporting genetic discrimination in employment.

You must first file a charge of genetic discrimination with the EEOC (or a state equivalent) before you may file a related lawsuit under GINA, should the EEOC not do so on your behalf. Don't delay for long in filing your charge or having your attorney file it for you, as a statute of limitations applies. Attorneys often take winnable discrimination cases on contingency.

Title II of the Genetic Information Nondiscrimination Act prohibits an employer from retaliating against you for filing a genetic discrimination charge or subsequent lawsuit, or for participating in related proceedings. The same goes for witnesses who testify on your behalf, such as coworkers. If an employer retaliates against you or your witnesses anyway, then you or your witnesses may take legal action to seek relief.

For more general information about genetic discrimination in employment, see Genetic Information Discrimination by the EEOC. For specific legal advice that fits your particular situation, consult an attorney.