Many Americans are aware the Americans with Disabilities Act (ADA) prohibits employers from discriminating against an employee on the basis of his or her disability. Fewer Americans, however, are aware it is illegal for an employer to discriminate because of genetic information.
Does an employee’s family medical history constitute genetic information? That is the question a New York federal district court will have to decide in EEOC v. BNV Home Care Agency, Inc. We will be watching this case closely.
- Genetic Information Nondiscrimination Act of 2008
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from requiring employees to disclose genetic information about themselves or a family member. GINA also prohibits employers from discriminating, harassing, or retaliating against employees or job applicants on the basis of genetic information. GINA also applies to health insurers, prohibiting them from denying health coverage to a healthy individual, or charging the person higher insurance premiums, based solely on a genetic predisposition to developing a disease in the future.
Genetic information is defined broadly under GINA to include an individual or family member’s genetic tests, receipt of genetic services, or requesting information about the possibility of a genetic disease or disorder. Genetic services include genetic counseling, genetic education, and genetic tests, which are defined as an analysis of human DNA, RNA, chromosomes, or proteins. Examples of genetic tests include those used to determine whether an individual has a BRCA1, BRCA2, or colorectal cancer genetic variant. Non-genetic tests include HIV tests, cholesterol tests, drug tests, and liver function tests.
- The EEOC Files Lawsuit Against Company For Violating GINA
The Equal Employment Opportunity Commission (EEOC) filed a lawsuit in September 2014 in the Eastern District of New York federal court against BNV Home Care Agency. The suit alleges BNV violated GINA by asking job applicants and employees for genetic information in the form of their family medical history. BNV required job applicants who were offered employment to complete an “Employee Health Assessment” form before they were officially hired. Once an employee was hired, he or she was required to complete the Employee Health Assessment form annually. The form required job applicants and employees to “indicate illness experienced by you or your family” by checking “yes” or “no” on a list of 29 health conditions, including diabetes, kidney disease, heart disease, high blood pressure, arthritis, mental illness, epilepsy, and cancer.
- What You Need To Know About GINA
If your employer requires you to disclose information about your family medical history, it may be violating GINA. If you believe you were discriminated against based on this information (not hired, for example), you may have a cause of action under GINA. Employers who request or require job applicants or employees to complete a health assessment form must be careful to exclude genetic information from the information sought or disclosed. If such medical history is disclosed, employers must not use such information against the employee or job applicant. An experienced employment lawyer should be consulted for the details of how GINA might affect employers or employees in specific circumstances.