Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) protects employees and job applicants from employment discrimination based on genetic information. Title II of GINA prohibits employers (and various employer-like entities and programs) from using genetic information in making any employment decisions — such as firing, hiring, promotions, pay, and job assignments. This law also prohibits employers from requesting or requiring genetic information or genetic testing as a prerequisite for employment.
GINA went into effect on November 21, 2009. The Equal Employment Opportunity Commission (EEOC) enforces Title II of GINA, regarding protections from genetic discrimination in employment. The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.
Genetic Information Defined
Under Title II of GINA, “genetic information” includes any information about an individual's genetic tests and genetic testing of an individual’s family members. Critically, this definition encompasses an individual’s family medical history — i.e. information about diseases or disorders among members of the individual’s family. 42 U.S.C. §2000ff(4). EEOC regulations clarify that GINA’s use of the phrase “manifestation of a disease or disorder in family members” in its definition of “genetic information” refers to an employee's “family medical history,” interpreted in accordance with its normal understanding as used by medical providers. 29 C.F.R. §1635.3(c)(iii).
GINA’s definition of “genetic information” includes family medical history because this kind of information is often used to predict an individual’s risk of future diseases, disorders, or other medical conditions that might theoretically, in the future, impair her ability to work.
Genetic information also includes an individual's request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual. 42 U.S.C. §2000ff(4)(B). Genetic information under GINA also encompasses the genetic information of a fetus carried by an individual or a family member of the individual, and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology. See 29 U.S.C. §1182(f).
Discrimination and Harassment on the Basis of Genetic Information
GINA’s basic intent is to prohibit employers from making a “predictive assessment concerning an individual's propensity to get an inheritable genetic disease or disorder based on the occurrence of an inheritable disease or disorder in [a] family member.” H.R.Rep. No. 110–28, pt. 3, at 70 (2007), 2008 U.S.C.C.A.N. 112, 141. Congress therefore included family medical history in the definition of “genetic information” because it understood that employers could potentially use family medical history “as a surrogate for genetic traits.” H.R.Rep. No. 110–28, pt. 1, at 36 (2007), 2008 U.S.C.C.A.N. 66, 80. See Poore v. Peterbilt of Bristol, L.L.C., 852 F. Supp. 2d 727, 730 (W.D. Va. 2012); see also the Final Rule implementing Title II of the Genetic Information Nondiscrimination Act, as published in the Federal Register on November 9, 2010; and the Final Rule on Employer-Sponsored Wellness Programs and Title II of the Genetic Information Nondiscrimination Act, as published in the Federal Register on May 17, 2016...
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