Introducing GINA:

Why You Need to Know About the Genetic Information Nondiscrimination Act

On April 25, 2007 the House of Representatives passed H.R. 493, known as the Genetic Information Nondiscrimination Act (GINA). The legislation seeks to outlaw various types of genetic discrimination, including discrimination in health insurance and employment.

If an employer does not conduct genetic testing on its employees, it might wonder why it even needs to know about GINA. However, GINA’s definition of “genetic discrimination” is so broad that, if passed, all employers will be forced to reckon with its provisions.

GINA largely mirrors Title VII of the Civil Rights Act of 1964 and makes the following employment practices illegal:

§ To fail or refuse to hire or to discharge any employee, or otherwise to discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee (or information about a request for or the receipt of genetic services by such employee or family member of such employee);

§ To limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee (or information about a request for or the receipt of genetic services by such employee or family member of such employee).

Importantly, GINA defines “genetic information” as information about: (i) an individual’s genetic tests; (ii) the genetic tests of family members of an individual; or (iii) the occurrence of a disease or disorder in family members of the individual. This is an extremely broad definition of “genetic information” which has the potential to apply to any disease or disorder that is arguably genetically-based or runs in families.

In addition, GINA makes it an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee (or information about a request for the receipt of such genetic services by such employee or a family member of such employee) except in certain limited circumstances (including inadvertently requesting/requiring an employee’s family medical history and requesting/requiring family medical history to comply with the certification provisions of FMLA). If an employer possesses genetic information about an employee, that information must be maintained on separate forms and in separate confidential medical files. Again, these provisions are quite broad and have the potential to trip up unwary employers.

Critics of GINA say that it is overbroad and will effectively expand the protections of the Americans with Disabilities Act (ADA). Critics also contend that GINA’s medical privacy provisions will radically alter employer use and processing of health care information, in a confusing manner that is inconsistent with existing medical privacy laws. Finally, critics say that GINA is unnecessary because there is no demonstrated history of employer discrimination in this area, and GINA’s anti-discrimination provisions (and the potential for recovering compensatory and punitive damages through jury trials) will invite frivolous litigation and abuse.

Nonetheless, GINA has many supporters. They contend that GINA is needed because recent advances in science give rise to the potential misuse of genetic information to discriminate in health insurance and employment. GINA has been passed by the House of Representatives.  Although GINA has been placed on the Senate legislative calendar, Senator Tom Coburn (R-OK) has placed a "hold" on the bill, which could prevent Senate consideration of the bill until Coburn's concerns are addressed. Regardless, GINA enjoys broad bipartisan support (with an astonishing 224 cosponsors in the House and 36 cosponsors in the Senate), and President Bush has indicated his intent to sign the legislation if it is passed by the Senate.

What can employers do while the fate of GINA is pending in Congress? At the very least, employers should take this opportunity to examine closely the amount and type of medical information they request from employees. They should also review their record-keeping practices to make sure that all medical information is maintained in separate, confidential files. These practices are already regulated by the ADA and reviewing them will benefit employers even if GINA does not pass. If GINA does become law, this preparation will give employers a head start on complying with its provisions.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.