(Genetic Information Nondiscrimination Act)

In 2008, GINA was enacted, and took effect in November 2009, and the EEOC made it part of its protection in January 2011. (Got that!). GINA is now part of the EEOC protections afforded to employees who are subject of discrimination. GINA stands for Genetic Information Nondiscrimination Act.

GINA has certain restrictions. Gina applies to businesses with 15 or more employees, and must file a claim with the EEOC to pursue a private cause of action. GINA relates specifically to their predisposition to the disease. But they may be covered for the discrimination under the ADA.

GINA protects employees who are subjected to discrimination based upon their genetics. Once an employee files a claim under GINA, they proceed much like they would had they filed a claim pursuant to a Title VII of the Civil Rights Act claim, and are also entitled to all remedies available under Title VII. An employee may be awarded compensatory damages, punitive damages, reinstatement of their job or front pay, back pay, attorneys’ fees and costs.

Certain genetic conditions are covered under GINA. Cancer, Heart conditions, and blood diseases are the biggest categories.

What exactly is genetic information? GINA says that genetic information is information about an employee’s genetic tests or tests of one of their family members, manifestation of a disease or disorder in their family members, genetic information about a fetus, or information about genetic services received by them or a family member.

How would your co-worker or employer happen to come upon your genetic information? Surprisingly, its fairly common. The most common is gossip. Standing around the water cooler and listening to the washer woman in accounting, someone says that they "heard that Joe has a blood condition" or that "mike’s son has a heart condition." This is the most common way of receiving genetic information about your employee (or his/her extended family).

What happens when this information affects my employers perception of me? While it is always okay to express your condolences or sympathy for an ailing employee, it is not okay to ask in depth questions about the family’s health history with heart disease or cancer or a certain blood disease, and then use such information to hurt an employee’s professional career (failing to give a raise, bonus, commissions, promotion or excluding an employee to entitled time off). If you terminate or adversely effect your employee because you feel that the job is too stressful and you’re afraid that he or she may be prone to heart attacks, you are in violation of GINA.

Evidence of a GINA violation. Its always a difficult thing to prove a discrimination, as is most litigation. Unless the employer’s hand is caught in the GINA cookie Jar, you will have to show circumstantial evidence. For example, an employee was on the fast track to Senior VP, but then you hear he has a heart condition, or you read that her mother died of breast cancer. The Employer terminates the employee because of the fear that the employee will end up with a heart attack or develop breast cancer.

Many companies require pre-employment physicals. Often the physicians request a family health history as part of the process. In order to protect your company under GINA, it is very important you instruct the physician to not request any genetic information during this process. The EEOC provides suggested language that you can employ to protect you. Some companies require personal health information in the application process. The employer must keep that information in a separate file from the employee "public" documents.

GINA often correlates with NJFLA, FLA, ADA, LAD and Title VII claims relating to your health, or your family members health. When an employee needs to take FMLA to take care of an ill family member, they are required to provide medical information. You can tailor your form to focus on the exact information you need to know when the time off request is for a seriously ill family member, in order to reduce the amount of genetic information provided.

If you would like more information on GINA, please contact Mark & Galusha, your GINA attorneys in Basking Ridge, and Newark New Jersey. We can be reached at 908-626-1001 or 973-440-2311, or tell us you story by clicking the "contact us" page.