Open your Employee Handbook. You have a policy prohibiting discrimination and workplace harassment, yes? If not, contact me immediately. Your handbook prohibits discrimination on the basis of age, sex, race, national origin, religion, and disability, yes? If not, seriously, give me a call. What about prohibitions against discrimination on the basis of genetic information? No? Your policy is in need of an update.

Almost five (5) years ago, the Genetic Information Nondiscrimination Act (“GINA”) went into effect, yet, it is still a relative unknown to many employers. GINA protects employees from discrimination based on his or her genetic information, including information about an individual’s genetic tests or that of his or her family members. This protection applies to private employers with 15 or more employees, as well as state and local government officials.  As with Title VII, employees have a private right of action for discrimination under GINA once they have exhausted the EEOC administrative process. All of Title VII’s remedies, including compensatory and punitive damages, injunctive relief, and attorneys' fees are available to prevailing plaintiffs under the Act.

GINA does not cover information about a disease or disorder that is currently affecting an employee. Such an employee would instead by protected by the Americans with Disabilities Act ("ADA"). Unlike the ADA, GINA only addresses impairments that might affect an individual in the future, i.e. a genetic predisposition, as opposed to a current, impairing condition.  Protected “genetic information” under GINA includes the following:

• An individual’s genetic tests;
• The genetic tests of an individual’s family members;
• Any request for, or receipt of, genetic services by the individual or any family member of the individual;
• Genetic information about a fetus carried by a pregnant individual or family member of an individual, or genetic information of an embryo where the individual or his or her family member is using assisted reproductive technology;
• The manifestation of a disease or disorder in an individual’s family member, i.e., family medical history.

As evident from the above described damage availability, consequences of discriminating against an individual based on a genetic predisposition can be significant. For instance, Fabricut, one of the world’s largest distributors of decorative fabrics, paid $50,000.00 to settle a disability and genetic information lawsuit filed against it by the EEOC.  In that matter, the first lawsuit ever filed by the EEOC alleging genetic discrimination, the EEOC charged Fabricut with violating GINA when it asked an applicant for her family medical history in its post-offer medical examination. Specifically, the applicant disclosed to Fabricut that she had numerous genetic predispositions, including, “heart disease, hypertension, cancer, etc.” Thereafter, Fabricut rescinded the applicant’s job offer. Not only did Fabricut’s action violate the ADA (for reasons outside of the scope of this article), but the inquiry also violated GINA. Under the Act, an employer is not only prohibited from discriminating against an individual based on genetic predispositions, but also, is restricted from requesting, requiring, or purchasing such information.  In addition to the $50,000 settlement payment, Fabricut agreed to take actions to prevent future discrimination against its employees, including dissemination of anti-discrimination policies to employees and supervisors regarding GINA.

Since the Fabricut case, the EEOC has increasingly taken on challenges to GINA, with similar results and settlement amounts far exceeding $50,000 and going well into six figures. Employers should take note of this increased attention to GINA.  An employers review of its' Employee Handbook will reveal whether the protections afforded under GINA are articulated and disseminated to employees.  Employers should also take an opportunity to review its training procedures and make certain that supervisory personnel are properly implementing policies prohibiting discrimination in the workplace.  Not only will an employer's review of its personnel policies guard against costly litigation, but also, consistent dedication to training and successful implementation of these policies goes a long way toward persuading the EEOC that the employer is dedicated to equal employment opportunities in the workplace.  When an employer's practices are called into question, the EEOC takes into account past efforts to maintain compliance with federal discrimination laws.

If you have questions on appropriate modifications of an Employee Handbook in light of GINA, contact our office.  Thompson Burton's employment law team is skilled in drafting personnel policies that reflect state and federal legal requirements, including those under Title VII and GINA.  Our team also has significant experience training supervisory personnel on appropriate implementation of these policies in the workplace, including training on how to properly respond to and investigate discrimination claims.