Genetic Information Nondiscrimination, Part 2

In addition to restrictions on use of genetic information in employment decisions as described in last week's Federal Legal Corner, the Genetic Information Nondiscrimination Act prohibits harassment because of a person's genetic information. Harassment can include making offensive or derogatory remarks about an applicant or an employee's genetic information.

The same standard is used to evaluate claims of harassment as under Title VII cases in that the harassment must be severe or pervasive in order to create a hostile work environment. Retaliation is prohibited against any individual who opposes actions unlawful under GINA, files a complaint, or assists another individual in filing a complaint. The remedies under GINA are the same as Title VII remedies: pecuniary and nonpecuniary damages including compensatory and punitive damages. Federal employees are not entitled to punitive damages.

Under GINA, the general rule is that the use of genetic information is prohibited. There is simply no legitimate use for genetic information. Also, employers are not entitled to acquire genetic information. There are exceptions, however, to the rule regarding the acquisition of genetic information. The first exception is the inadvertent acquisition of genetic information or what is often referred to as the "water cooler" exception. This means that an employer will not be held liable if it obtains genetic information about an employee through inadvertence. For example, a supervisor overhears a conversation between subordinates during which genetic information is disclosed such as "my wife is undergoing breast cancer treatment" or "my dad has prostate cancer." The employer will not be held liable under GINA because it has obtained genetic information about the employee in such ways. Merely obtaining genetic information in this way is not illegal; use of that information is what is barred.

GINA also includes an exception applicable to employees who request leave under the Family and Medical Leave Act or who request a reasonable accommodation for a disability. Any medical information obtained as a result of these requests that contains genetic information has not been obtained in violation of GINA. Another exception applies to information that is commercially and publicly available in sources such as newspapers, books, magazines, and periodicals. Learning from such a source that an employee's relative died from a particular illness that may have a genetic component would not be unlawful. For example, there might be medical information in an obituary that could suggest a genetic component if an employee's sister died of breast cancer or a brother died from pancreatic cancer.

Knowing this information and acting on it, however, are two different things. It is important to note that genetic information may be acquired through commercially and publicly available documents like newspapers, or on the Internet, as long as the employer is not searching those sources with the intent of finding genetic information.

Was the acquisition of genetic information in the Fink case, described last week, illegal? No, because Fink apparently volunteered to her employer the information about her genetic testing and her decision to have surgery. Was the decision to fire her illegal? Possibly, if she can show that it was based on her genetic information. As her case proceeds, we will surely hear more information about this and other GINA claims.

For federal government employees, the process to file an EEO complaint on the basis of genetic discrimination is the same as for other discrimination claims. You must contact your EEO office within 45 days of the date you become aware of the alleged discriminatory act. Your claim will be processed by your EEO office just as any other federal sector complaint of discrimination. Final regulations implementing the employment provisions of GINA were issued by the Equal Employment Opportunity Commission on November 9, 2010. These regulations are located at 29 CFR Part 1635. More information on genetic discrimination is available on the EEOC website at: http://eeoc.gov/laws/types/genetic.cfm.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.