As of 2009, employment discrimination on the basis of an individual's genetic makeup is prohibited under federal law. That means employers, employment agencies and similar entities may not request, require, purchase or disclose a current or prospective employee's genetic information, nor make employment decisions based on such information. Harassment based on genetic information also is prohibited, as with any other type of harassment covered by the Equal Employment Opportunity Commission (EEOC).

Additionally, 35 states have laws prohibiting discrimination on the basis of genetic information; some of them may apply to employers with less than 15 employees.

Genetic Information Nondiscrimination Act

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) covers all U.S. employers with 15 or more employees. "Genetic information," as defined by GINA, includes information about the following:

• An individual's genetic tests;
• The genetic tests of an individual's family members;
• The manifestation of a disease or disorder in an individual's family (i.e. family medical history);
• An individual's request for, or receipt of, genetic services (or that of a family member);
• The genetic makeup of a fetus being carried by an individual or family member;

GINA does not cover individuals who already have impairments or conditions that may have a genetic basis, such as diabetes or certain forms of cancer. However, the Americans with Disabilities Act (ADA) prohibits discrimination against those whose condition meets the legal definition of "disability."

As with other protected characteristics such as race, gender, national origin, age or disability, an individual's genetic information is not considered relevant to that person's ability to work. Therefore, an employer may not use such information as the basis for hiring, firing, pay, promotions, job assignments, layoffs, benefits, training or any other employment action.

Harassment on the basis of one's genetic information, which also is prohibited under GINA, may consist offensive comments that are considered severe enough to cause a hostile or offensive work environment or which cause an adverse employment decision (i.e. the victim is demoted or terminated). Retaliation against an employee who has filed a complaint or otherwise opposed genetic discrimination also is illegal.

Acquisition of Genetic Information: Exceptions to GINA

While GINA prohibits employers and other covered entities to acquire genetic information, the EEOC designates the following narrow exceptions:

1. Inadvertent acquisition of genetic information, such as an overheard conversation about an employee's illness;
2. In some situations where the individual has voluntarily provided such information as part of a health or wellness program;
3. Acquisition of family medical history as part of FMLA leave certification (i.e. employee is caring for a seriously ill family member)
4. Information gleaned from publicly available sources, such as newspapers
5. Information obtained through certain genetic monitoring programs that are required by law, where employee participation is voluntary
6. Genetic information obtained in a facility that engages in DNA testing (such as a forensics lab), as used for analysis of DNA markers to detect sample contamination

Inadvertent GINA Violations: Safe Harbor

An employer may have to request health-related information from an employee in some cases, which can lead to the inadvertent acquisition of genetic information. For example, an employee may be requesting a reasonable accommodation under the ADA or request for extended medical leave. However, it is important for employers to create a safe harbor by providing a warning to the individual about GINA. The EEOC suggests the following, expressed either verbally or in writing:

GINA prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, it is advisable that your employees not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Seeking Legal Help

The outcome of a genetic discrimination case can have an enormous impact on your small business. The complexity of these types of cases leads many people to hire attorneys to help obtain the best possible outcome. Find a qualified employment attorney in your area to assist you.