When considering the panoply of employment laws they deal with daily, the Genetic Information Nondiscrimination Act, or GINA, is not something businesses often think of. Indeed, the law had plenty of detractors when it was first passed, with many considering it “a solution in search of a problem.” Proponents of the statute pointed out that numerous polls established that individuals were afraid they would suffer adverse employment action if their negative genetic information were available to employers. Legislative support for GINA was overwhelming, with only one “No” vote being registered between the House and Senate. Given what we are starting to see from the EEOC, including a willingness to assert harassment claims under GINA, now is a perfect time for a refresher.
GINA was enacted in 2008 and prohibits employers from discriminating against applicants and employees based on genetic information. Genetic information includes genetic tests, the genetic tests of an individual's family members, and the manifestation of a disease or disorder in family members (for example, a child with sickle cell anemia). There are several exceptions to coverage, including inadvertent receipt of genetic information by an employer (i.e., “water cooler” conversations), information disclosed through an employer's wellness program, and commercially or publicly available information, such as in a published obituary. Similarly, employers can receive genetic information via an employee's voluntary and written authorization, such as when the employee seeks leave via the FMLA.
In these instances, the employer is not penalized for obtaining genetic information about its employee. However, regardless of how the employer obtains genetic information, including if the employee freely shares it, the employer is prohibited under GINA from “discriminating” against the employee. Thus, employers cannot use the genetic information they have obtained when making hiring or discharge decisions or concerning compensation, terms, conditions, or privileges of employment. Similarly, employers are prohibited from limiting, segregating, or classifying employees to deprive them of employment opportunities or affect their status as employees.
GINA does not expressly prohibit “harassment” of an employee because of their genetic information. However, when describing prohibited practices under GINA, Congress incorporated language similar to Title VII of the Civil Rights Act of 1964 and other EEO laws prohibiting harassment. The EEOC interpreted this as Congressional intent for GINA to cover the full range of practices prohibited by Title VII, including a prohibition against harassment. Thus, the EEOC's guidance on GINA, including the GINA regulations, prohibits harassment.
There remains a question of whether the courts will agree with the EEOC's position that GINA prohibits harassment. While there is a strong argument against including harassment as a prohibited act under GINA, here are some best practices you can adopt to minimize risk:
- Review your policy to ensure that harassment is prohibited, especially in genetic information sections.
- Provide regular training to your supervisors, managers, and HR personnel about harassment and discrimination.
- Adopt a straightforward process to report harassment and communicate it to your employees. Consider adopting multiple routes, including anonymous reporting, through which employees can report issues.
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