Genetic Information Nondiscrimination Act (GINA) in Pre-Employment Screenings

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  1. Generally

Passed in 2008, GINA was passed by Congress to prohibit the use of genetic information in health insurance and employment. It is codified at 42 U.S.C.A. § 2000ff. The statute provides that it shall be an unlawful employment practice 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, because of genetic information with respect to the employee; or 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. 42 U.S.C.A. § 2000ff-1(a). GINA also limits the employer’s ability to request, require, or purchase genetic information of employees or family members of employees. 42 U.S.C.A. § 2000ff-1(b).

  1. “Genetic Information”

The definition of “genetic information” in the statute does not just encompass genetic testing of individuals. “Genetic information” also includes “the manifestation of a disease or disorder in family members of such individual.” 42 U.S.C.A. § 2000ff(4)(a)(iii).

It is this final definition that can most often cause a problem for employers during the pre-employment screening process. It is easily possible for an employer to obtain information related to the medical history of an individual’s family inadvertently. A mere slip of the tongue by the individual during the interview process could divulge the information. A simple Google or Facebook search by the employer could turn up information about the medical history of an individual’s family member.

If an employer receives information that an individual’s family member(s) have suffered from a disease or disorder, the employer may not consider such information in making decisions regarding hiring, compensation, conditions of employment, employment terms, or privileges of employment. Although employers typically will not use this information, the mere fact that the employer received the information (even if unintentional) could give the applicant a sufficient ground to bring a discrimination claim under GINA. Although the employer could likely defend against such a claim, the employer will face the burden of attorneys’ fees and the negative publicity that surrounds any discrimination case.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of this law firm or its individual partners.

 

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