FEDERAL ACT ADDS NEW PROTECTED CHARACTERISTIC TO TITLE VII

The Genetic Information Nondiscrimination Act (GINA) recently became effective. It is designed to prohibit the use of genetic information in decisions affecting health insurance and employment.

GINA amends Title VII of the Civil Rights Act to prohibit employment discrimination on the basis of “genetic information.” Genetic information means information about employees’ and their family members’ genetic tests, as well as their request or receipt of genetic services, such as genetic counseling. Genetic information is also defined to include information about the existence of diseases or disorders in an employee’s family members, i.e., an employee’s family medical history. The term does not include the age or sex of any individual.

The Act also prohibits, with very limited exceptions, employers from requesting, requiring, or purchasing genetic information about employees or their family members.

Employers covered by Title VII (generally, employers with 15 or more employees) are covered by GINA’s prohibition on employment discrimination. Employers should update their posters in the workplace, which are available from the EEOC, to account for the passage of GINA.

Similar to GINA, California’s FEHA prohibits employment discrimination on the basis of real or perceived genetic characteristics. Cal. Gov’t Code §§ 12940(a), 12926(h), (m). Under FEHA, “genetic characteristics” means genes, chromosomes, or inherited traits known to be a cause of disease or disorder. FEHA also prohibits employers from testing individuals for genetic characteristics. Cal. Gov’t Code §12940(o).

GINA also addresses the use of genetic information by health insurers. Both group and individual health plans, for example, may not impose higher premiums based on the genetic information of a participant.