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GINA Bars Medical History Discrimination

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Lawsuits under the Genetic Information Nondiscrimination Act of 2008 (“GINA”) based on family medical history discrimination have been rare.  Because of this lack of attention, many people still do not know that this law exists and what it actually accomplishes.

GINA was debated in Congress for over thirteen years.  The Act that eventually passed was first introduced in January of 2007, and wit as signed into law on May 21, 2008 by President Bush.  GINA protects individuals from having their genetic information affect their health coverage and employment.  In the employment context, this means that employers can never ask for an individual’s or their family member(s)’ genetic information, including, in most respects, family medical histories and genetic tests.  If they do somehow obtain this information, they cannot use it to make any employment decisions, including but not limited to hiring, firing, and promotions.

The Equal Employment Opportunity Commission’s (“EEOC”) first case under this six-year old law, EEOC v. Founders Pavilion, Inc., 13-CV-01438 (W.D.N.Y), was filed just last year and settled in January 2014.  In that case, a rehabilitation facility in Corning, New York allegedly conducted a post-employment offer medical exam that included questions asked about family medical histories. As explained in the EEOC’s press release, the 138 people whose GINA rights were allegedly violated received a total of $110,400.

There are six narrow exceptions to liability under the law.  The most commonly applicable exceptions are when an employer accidentally receives genetic information or an employee voluntarily provides it.  In both situations, the employer may not consider this information when making employment decisions.  When information is volunteered, an employer may use it for wellness programs and for other approved reasons, but never for hiring or firing.

When GINA first passed, many wrote it off as a futuristic law that seemed more likely to calm conspiracy theorists than to prevent discrimination.  As the case just settled by the EEOC shows, employers have illegally asked employees for family medical records and have the potential to use this information against them.  GINA offers strong protection against invasive employer practices and provides a necessary safeguard.

 

About Jonathan Cohn

Jonathan Cohn (Jon) focuses on employee benefits, labor, employment and class action cases. Jon also litigates individual employment discrimination actions in both federal and state court, advises executives and professionals concerning their employment and non-competition agreements, and negotiates severance packages. Find him on Google+.

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