From Gattaca to GINA: Use of genetic information in workplace is problematic

If there is one thing that is universal about the entertainment world, it’s that it makes us all feel inadequate. Yes, with the airbrushed photos and the digital editing techniques, the stars and starlets who grace the covers of magazines and show up on the big screen all seem to have something (or multiple things) that we regular folk just don’t. I’d even bet most of the beautiful people look better rolling out of bed in the morning than I do on my best day.   GeneticEngineering

It’s true that in certain ways we are not all created equal. Each of us has our own genetic make-up, which is little more than the pooling of the genes—both good and bad—from our parents, and their parents, and so on. The combination of these genes determines things like our height, athletic ability, and our predisposition to certain medical conditions such as cancer.

If you’ve ever wished to be a little bit taller or to be a baller—and if you got that Skee-Lo reference—you might remember the 1997 Sci-Fi drama Gattaca staring Ethan Hawke and Uma Thurman. The film depicts a society in which “improved” children are conceived through genetic manipulation, creating a society divided into two social classes—the “valids” and the “invalids”—based on each person’s DNA. The plot line follows the struggles of Vincent Freeman (played by Hawke) to overcome the imperfections of his natural birth and achieve his dream of becoming an astronaut. The film also shows the potential horrors of a dystopian society in which people are discriminated against based on their genetic makeup.

Eleven years after the release of Gattaca, Congress took steps to avoid life imitating art by passing the Genetic Information Nondiscrimination Act (GINA), which prohibits employers from requesting genetic information or making employment decisions based on an individual’s genetic information. GINA is the exception to the rule for laws of its kind in that in many ways it is ahead of its time. At the time of its enactment in 2008, and even still today, science has not reached the point to where employers readily have access to, or would know how to interpret, information relating to an employee or applicant’s genetic code.

But, for all of its far-flung, futuristic thinking, GINA also affects employer hiring practices in a very real and current way: family medical history. GINA strictly prohibits employers from requesting, receiving, or utilizing an individual’s family medical history in employment decisions. According to the Equal Employment Opportunity Commission (EEOC), family medical history is included in the list of impermissible information protected by GINA because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. Other prohibited information requests include any question designed to elicit information about the manifestation of a disease or disorder in an individual’s family members as well as questions relating to an individual’s use of assisted reproductive technology or the individual’s participation in clinical research that includes genetic services by the individual or a family member of the individual.

Although GINA still only represents less than 1% of the total discrimination charges processed by the EEOC, the Commission is serious about enforcing GINA. No better example exists of the EEOC commitment than its recently announced settlement with a Corning, New York, nursing home operator over alleged GINA violations. In the underlying lawsuit, the EEOC alleged, among other things, that the nursing home operator requested family medical history as part of its post-offer, pre-employment medical exams of applicants—a clear no-no under GINA.

In the settlement, the nursing home operator agreed to pay a hefty sum in excess of $100,000 to resolve the GINA claims. It also agreed to revise its anti-discrimination policies to include specific references to genetic information discrimination, disability discrimination, and pregnancy discrimination laws, as well as to include a complaint and investigation procedure for employee complaints of discrimination. The employer will also provide anti-discrimination training to all of its employees.

In light of the EEOC’s enforcement activities, employers are advised to review their application and hiring procedures to identify and remove any potentially impermissible requests for information, including family medical history. Employers also should review their internal processes to ensure impermissible information is not being used as the basis for decisions relating to any aspects of employment, including hiring, firing, pay, job assignments, promotions, or the provision of other benefits such as health coverage. Failing to take these precautionary steps can result in the employer incurring substantial costs and expenses to defend against administrative enforcement actions by the EEOC and/or lawsuits brought by private litigants.