South Carolina Lawyer
SC Lawyer, March 2010, #3.
Meet My New Friend, GINA
South Carolina LawyerMarch 2010Meet My New Friend, GINABy Aisha Grant TaylorOn November 21, 2009, Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA" or "the Act") took effect. While genetic testing for hundreds of diseases, including breast cancer, cystic fibrosis and sickle cell anemia, can help identify hereditary links and assist doctors in making early diagnoses, the risk of misunderstanding or misusing that information has increased. Congress moved to address some of those risks in enacting GINA. The Act represents the first legislative expansion of the Equal Employment Opportunity Commission's (EEOC) jurisdiction in almost two decades, since the Americans with Disabilities Act (ADA) was passed in 1990.
In short, GINA prohibits discrimination in employment and health insurance based on a person's genetic information or the genetic information of a person's family members. It also requires employers and other covered entities to protect the confidentiality of individuals' genetic information. GINA applies to all entities covered under Title VII of the Civil Rights Act of 1964 (Title VII); i.e., employers with 15 or more employees, employment agencies, labor unions and joint labor-management training programs. It also applies to federal employers covered by Section 717(a) of the Civil Rights Act of 1964, such as military departments, executive agencies and the U.S. Postal Service.
What is genetic information?
While the act of testing to obtain genetic information may seem like a futuristic idea to many, it is very much a common practice. The term "genetic information" is generally defined as information about (1) genetic tests that an individual has undergone, (2) the genetic tests of an individual's family members and (3) the manifestation of a disease or disorder in a family member of an individual. 42 U.S.C. § 2000ff(4)(A) (Supp. 2009). More specifically, the term "genetic information" encompasses use of genetic services (such as counseling) or participation in clinical research involving such services. Id. at § 2000ff(4)(B). The EEOC, which is tasked with enforcing Title II of GINA, has issued proposed regulations that also include genetic information of a fetus or an embryo in the definition.
Genetic testing and employment discrimination
As of November 21, 2009, GINA makes it unlawful for an employer "to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee...