DNA, GENEALOGY AND DISCRIMINATION

The Genetic Information

Non-Discrimination Act (“GINA”)

Recently, federal non-discrimination legislation expanded to cover medical science advances in genetic technology.  In 2008, former President George W. Bush signed the Genetic Information Nondiscrimination Act (“GINA”) into law.  Title II of the Act became effective November 21, 2009 and applies to employers.  Title I of the Act applies to health insurers and became effective in phases, the first phase on May 22, 2009 and the last phase on May 21, 2010.

The new law applies to all employers with fifteen (15) or more employees as well as to employment agencies and labor unions and bans discrimination in any aspect of employment, including hiring, promotion, pay and benefits, based upon genetic information.

In the Act, Congress explained why GINA was necessary.  First, the advances in medical science and new knowledge about the genetic basis of illness will allow earlier detection of illnesses.  However, these advances give rise to potential misuse of genetic information to discriminate in health insurance and employment.  Congress referenced the early history of state eugenics laws which focused upon sterilization programs.  By the 1970’s, state legislatures began drafting legislation to screen and identify carriers of sickle cell anemia, a disease which afflicts African-Americans.  These measures led to discrimination and unnecessary fear.  Finally, federal law addressing genetic discrimination was incomplete and inadequate.

Genetic tests are limited to those tests that analyze human DNA, RNA, chromosomes, proteins or metabolites that detect genotypes, mutations or chromosomal changes.  Specifically, “genetic information” includes both the individual’s own genetic tests as well as the genetic tests of family members down to the fourth degree of relation, and also includes the manifestation of a disease or disorder in family members of such individual. Because of the nature of genetic information, the Act significantly expands the definition of a “family member” to include genetic information of an individual’s relatives.  This means that genetic information could include direct and collateral family members all the way back to the individual’s great-great grandparents.  Because each individual has sixteen (16) great-great grandparents, this can involve a large number of family members.

Under GINA, do not utilize any genetic screening procedures when rendering employment decisions.  For example, your company is hiring.  An applicant, John Smith, just happens to be the brother of one of your employees, Bill Smith.  However, you previously discovered that Bill Smith recently had a genetic test which indicates that Bill has a strong predisposition to develop a very serious disease which will likely render him incapable of working for periods and would also require costly treatment.  You cannot use this information to deny employment to Bill’s brother, John Smith. Learning that an applicant or an employee may be predisposed to acquiring a particular disease cannot be the basis for not hiring the applicant or for terminating the employee.

Follow the EEOC’s stated position on GINA:  “There are no situations in which it is permissible to use genetic information to make an employment decision.”