Historic Anti-Discrimination Law Bans Genetic Discrimination
December 2, 2009
As California Employment and Labor Attorneys, we have been following the passing of the most comprehensive federal anti-discrimination law in almost 20 years--The Genetic Information Nondiscrimination Act of 2008 (GINA)--that prohibits employers from genetic testing, or discriminating in the workplace based on genetic makeup.
According to the new law, it is illegal for employers to hire, fire, pay, give promotions, layoffs, or any other terms or conditions of employment based on genetic information. Employers are prohibited from requesting genetic testing, or demanding employees to disclose family medical histories--because genetic information does not inform the employer about a person's ability to work. It is also illegal with this new law to fire, harass, or retaliate against an applicant or employee who participates in a discrimination proceeding or lawsuit.
Under GINA, health insurers and group plans are also unable to use a person's genetic makeup against them, for the basis of denying coverage or setting insurance rate premiums or deductibles based on possible genetic predispositions, like heart disease, breast cancer, or Parkinson's disease. The law also bans heath plans from rewarding employees for giving family medical information and histories when filling out questionnaires on health risk.
The federal government has not placed an act into motion with such comprehensive employment protections since the passage of the Americans With Disabilities Act of 1990. Stuart J. Ishimaru, acting chairman of the EEOC, stated in a press release that GINA reaffirms the American labor principle that all workers have the right to be judged according to their ability to do the job, and that an employee should not be denied a job or treated unfairly in the workplace due to genetic predisposition.
The New York Times reported that GINA was passed by Congress last year because many Americans worried about genetic testing and the potential for discrimination in the workplace. Genetic tests can help determine whether a person has a genetic predisposition for a disease or is at risk for developing a specific medical condition in the future. But according to a survey conducted nationwide, 63 percent of the people claimed that they would not engage in genetic testing if their employers would be privy to the results. With employers and health insurers having access to the results of genetic testing, many Americans feared this information would be used against them, in a discriminatory way--by being fired for example, or being denied health insurance coverage because of family medical history.
The legislation gained momentum from a case involving David Escher, a Nebraska-based track maintenance worker. Escher developed carpal tunnel syndrome on both wrists, and was asked to do seven blood tests by his employer, Burlington Northern. Escher later learned that the railroad was doing genetic testing to determine whether or not he had a predisposition for the syndrome, in order to reduce cost with workers' compensation. The lawsuit settled in 2002, and Burlington Northern paid $2.2 million in a settlement that was distributed between 36 workers who were all subjected to genetic blood testing without their permission.
GINA took effect on November 21st for all employers with 15 or more employees, and will take effect for group health insurers with plan years that begin on or after December 7th.
At Howard Law, PC, our experienced team of California Labor and Employment Attorneys aggressively protect your safety and health rights in the workplace. Contact us today, for a free consultation, so we can help you with your recovery.
Law Seeks to Ban Misuse of Genetic Testing, The New York Times, November 15, 2009
New Law Bans Genetic Discrimination, Los Angeles Times, November 21, 2009
Historic Genetic Information Nondiscrimination Act Takes Effect, EEOC Press Release, November 20, 2009
Related Web Resources:
U.S. Equal Employment Opportunity Commission, (EEOC): Genetic Information Nondiscrimination Act of 2008