- It’s illegal to discriminate against employees or applicants because of genetic information.
The Genetic Information Nondiscrimination Act of 2008 (GINA)
GINA makes it illegal to discriminate against employees or applicants because of genetic information. Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as w ell as information about any disease, disorder or condition of an individual’s family members (i.e. an individual’s family medical history).
Example:
EEOC filed a lawsuit against a company for asking for illegal questions in screening process of new hires. (EEOC v. Joy Underground Mining, LLC, t/a Joy Mining Machinery, Civil Action No. 2:15-cv-01581-CRE) in U.S. District Court for the Western District of Pennsylvania.
According to the EEOC’s lawsuit, Joy Mining required applicants to undergo a post-offer medical examination which improperly requested family medical history on its pre-placement physical form. The basis for the lawsuit is that the company’s form asks applicants if they had a family medical history for “TB, Cancer, Diabetes, Epilepsy, [and] Heart Disease.”
Such questions and process violates the Genetic Information Non-Discrimination Act (GINA), which protects individuals against employment discrimination on the basis of genetic information, including family medical history. GINA also prohibits employers from requesting, requiring or purchasing genetic information about applicants or employees, except in very narrow circumstances which do not apply in this case.
Gina also makes it illegal to retaliate against a person because the person complained about Genetic discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Many employment lawyers and legal scholar think that that the burden shifting involved in establishing that discrimination has actually occurred in typical Title VII discrimination cases (based on race, national origin, sex, etc) will apply to GINA lawsuits (See McDonnell Douglas v. Green, 411 U.S. 792 (1973) and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), respectively).
The EEOC’s enforcement statistics shows that discrimination charges alleging genetic discrimination are modes.
