The Genetic Information Nondiscrimination Act (GINA) went into effect on November 21, 2009. It is a lesser known anti-discrimination statute that prohibits certain types of discriminatory actions relating to genetic information.
GINA prohibits employers from requesting, requiring, or purchasing genetic information about applicants or employees or their family members. GINA also prohibits employers from making employment related decisions based on an employee's genetic information.
Genetic information includes information about an applicant's or employee's genetic tests, the genetic tests of the applicant's or employee's family members, and a family member's disease or disorder. The definition of genetic information specifically excludes information regarding the applicant's or employee's sex or age.
Types of Claims
Under GINA, a claim of unlawful discrimination would be shown by establishing:
1-The employer is in possession of the employee's genetic information;
2- The employee suffered an adverse employment action, including harassment; and
3- An inference of discrimination exists between the adverse action and the employer's possession or use of the employee's genetic information.
GINA violations may arise based on documentation properly provided to the employer for other purposes, such as part of a job related medical inquiry, workers' compensation injury, or reasonable accommodation request pursuant to the Americans with Disabilities Act (ADA) or Rehabilitation Act. A violation of GINA can also occur where an employer accesses an employee's medical records directly without his or her permission or where the employer has obtained such information properly, but failed to keep the information in a confidential and secure manner. The failure to properly maintain medical information may also be a violation of the ADA, the Rehabilitation Act, and other state and federal laws.
Where an employee proves the employer violated GINA, he or she is entitled to the same types of remedies available under Title VII of the Civil Rights Act of 1964.
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