BNA INSIGHTS: Assessing The Genetic Information Nondiscrimination Act’s Impact on Employers After Two Years: Review of Litigation, EEOC Activity, Liability Risks, and Compliance Tips

By Brett Coburn and Wes R. McCart, Alston & Bird, Atlanta

Nov. 21, 2011 marked the two-year anniversary of the effective date of the Genetic Information Nondiscrimination Act (GINA), which imposes limitations and special requirements on an employer’s acquisition and use of the genetic information of its employees. This article assesses the impact that GINA has had on employers by examining regulatory and judicial developments regarding the statute over the past two years, as well as recent efforts by several states to implement similar requirements at the state law level.

Summary of GINA’s Statutory and Regulatory Requirements

President Bush signed GINA into law on May 21, 2008 (7 PVLR 778, 5/26/08), and it went into effect on Nov. 21, 2009. As a general matter, GINA (1) prohibits the use of genetic information in making decisions related to any terms, conditions, or privileges of employment; (2) prohibits retaliation against individuals who oppose unlawful practices under GINA or participate in any investigation or proceeding under GINA; (3) restricts employers and other covered entities from requesting, requiring, or purchasing genetic information, with limited exceptions; and (4) generally requires employers and other covered entities to keep confidential any genetic information they have obtained about applicants and employees. GINA incorporates the enforcement provisions of Title VII, including the requirement that an aggrieved person file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or a similar state or local agency. GINA also provides the same remedies that are available under Title VII, including compensatory and punitive damages.

EEOC is responsible for enforcing GINA. EEOC’s final regulations implementing the requirements of GINA are codified at 29 C.F.R. Part 1635 and went into effect Nov. 9, 2010 (9 PVLR 1559, 11/15/10). Among other things, the regulations provide additional detail regarding the definitions of several key terms of the statute, such as “genetic information,” “family member,” and “family medical information.” They also explain how GINA prohibits the use of genetic information in employment decisions. The regulations also make clear that GINA’s prohibition against acquisition of genetic information by employers is to be broadly construed, and they provide guidance regarding the limited circumstances in which employers may legally acquire genetic information. Additionally, the regulations detail employers’ obligations to keep genetic information confidential, as well as the limited situations in which disclosure of such information is permissible under the statute. While the regulations are ultimately helpful in providing guidance to employers about ensuring compliance with the requirements of GINA, they contain a number of technical requirements that could prove to be costly pitfalls for unwary employers. Several tips for avoiding these pitfalls are discussed in the final section of this article…

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