As an employee, you’re protected from discrimination based on your membership in a protected class, which includes genetic information. The Genetic Information Nondiscrimination Act of 2008 (GINA) is a federal law that makes it illegal for employers with more than 15 employees to discriminate against an employee in any aspect of employment due to their genetic information.
At Brown Kwon & Lam, we help employees who are experiencing all forms of discrimination in the workplace, including genetic information discrimination. Learn more about genetic information and what employee rights you have under GINA.
What is Genetic Information?
Some might not understand what is considered to be genetic information under GINA. A person’s genetic information is obtained through a genetic test. There are many reasons a person may have a genetic test performed, such as to determine their risk of inheriting a disease. For example, genetic testing can show if a person may inherit diseases like Huntington’s disease, sickle cell anemia, and cancer. This also doesn’t guarantee that a person will develop a disease or disorder they’re at risk of or show how severely it will affect them.
Not only can an employee be discriminated against for their own genetic information, but they can also be discriminated against for a family member’s genetic information, family medical history, or the manifestation of a disease or disorder in their family members. This also includes the genetic information of a fetus carried by or an embryo held by the employee or a family member.
How Do Employers Obtain an Employee’s Genetic Information?
In many cases, there is no reason for an employer to have information regarding an employee’s or their employee’s family’s genetic information. Requesting, requiring, or purchasing genetic information about an employee or job applicant is prohibited under GINA, with a few expectations. This includes:
- When the employee voluntarily provides this information as part of a health or genetic service.
- If family medical history is required for leave under FMLA or other leave policies.
- If the information is commercially and publicly available.
- For genetic monitoring required by the law or provided voluntarily.
- When an employer conducts DNA testing for law enforcement purposes.
- When the employer obtains this information accidentally.
If an employer does need to obtain an employee’s genetic information, they have a responsibility to keep it confidential. If an employer has this information in writing, it must be kept separate from the employee’s personnel files. The only occasions when an employer may share an employee’s genetic information are:
- When the employee or the family member the information is regarding provides a written request.
- When an occupational or health researcher is conducting research in compliance with certain federal regulations.
- After a court order, in which case, the employer must provide only the information authorized by the order.
- When government officials are investigating compliance with Title II of GINA if the information is relevant.
- For the certification process for FMLA leave or other leave policies.
- If information about the manifestation of a disease or disorder concerns a contagious disease that presents an imminent hazard of death or life-threatening illness, it may be disclosed to a public health agency.
How Common is Genetic Information Discrimination?
While genetic information discrimination is not reported as frequently as other forms of employment discrimination, such as race or gender, hundreds of employees are still affected by it each year. In fact, the number of employees who filed a genetic information discrimination claim to the Equal Employment Opportunity Commission (EEOC) in 2020 doubled from previous years.
Contact NYC Genetic Information Discrimination Lawyers for Help
If you’ve received genetic testing and believe your employer may be discriminating based on your genetic information, you don’t have to fight back against them on your own. Genetic information discrimination is illegal, and an experienced employment discrimination lawyer can help you get what you deserve.
Contact our genetic information discrimination lawyers today to learn more.