Genetic Information Nondiscrimination Act Signed Into Law

On May 21, 2008, President Bush signed the Genetic Information Nondiscrimination Act (GINA) into law. GINA's intent is to prohibit employers, employment agencies, labor unions and health insurers from discriminating against employees and insureds based on their genetic information, as well as collecting or disclosing their genetic information. GINA also requires employers, unions and employment agencies that obtain genetic information to treat such information as a confidential medical record. The Equal Employment Opportunity Commission (EEOC) will propose certain interpretative regulations within 12 months. GINA takes effect in November 2009. 

Similar to Title VII, GINA requires individuals claiming employment discrimination based on their genetic information to exhaust available administrative remedies with the EEOC before initiating a lawsuit. If the EEOC provides the complainant with a right-to-sue letter, then the employee may file suit seeking compensatory and punitive damages, equitable relief, including front and back pay, and attorney's fees. Unlike Title VII, GINA only applies to intentional discrimination. GINA precludes claims originating from the adverse impact of facially neutral employment practices. GINA also includes "firewall" language, precluding a claim against an employer for both employment and health insurance discrimination.

In application, whether GINA presents several challenges to affected employers may be determined by how implementing rules are written. For example, GINA's prohibition on the disclosure of genetic information, except in limited circumstances, may create potential liability for employers responding to subpoena or discovery requests from private litigants. As a safeguard, employers should consider separating genetic information from other medical information and only producing genetic information in response to a court order. 

GINA also does not pre-empt other federal or state laws providing greater protection to employees. The actual or potential lack of uniformity between GINA and those state laws which may have higher standards creates compliance issues for employers doing business in multiple states. 

Frank Swain from the Washington, D.C. office of Baker & Daniels LLP was extensively involved in drafting and negotiating final bill language.