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What You Should Know: Questions and Answers about the Genetic Information Nondiscrimination Act (GINA) and Employment

Background

EEOC enforces  Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits the use of genetic information in making employment decisions in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment.

1. What is "genetic information"?

Genetic information includes: family medical history; information about an individual's or family member's genetic tests, such as tests to detect whether an individual has an increased risk of developing certain cancers or other diseases; and the fact that an individual or the individual's family member has sought or received genetic counseling or has participated in clinical research that includes genetic testing

2. What does GINA prohibit employers from doing with genetic information?

An employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual's current ability to work.

Under GINA, it is also unlawful for employers to request, require, or purchase an applicant's or employee's genetic information.  This means that employers must tell their health care providers that they cannot ask about family medical history when conducting post-offer or fitness-for-duty examinations.  There are, however, a few exceptions to this rule, such as:

  • when an employer gets genetic information inadvertently or pursuant to the FMLA;
  • when an employee receives voluntary health or genetic services that an employer offers; or
  • when an employer acquires genetic information from sources that are "commercially and publicly available," like newspapers, books, and public websites.

An employer must keep any genetic information it does acquire about an applicant or employee confidential, subject to certain very narrow exceptions.

GINA imposes the same requirements on other entities as well, such as employment agencies, labor organizations, and joint labor-management committees controlling apprenticeship or other training or retraining.

3. What can a person do if he or she believes an employer has violated GINA?

A person who believes that an employer has violated GINA may file a charge of discrimination with the EEOC within 180 days of the alleged violation, or within 300 days if a state or local agency enforces a law that prohibits employment discrimination on the basis of the acquisition or use of genetic information.  EEOC then will notify the employer of the charge and attempt to settle it or resolve the dispute through mediation.  If the dispute is not resolved voluntarily, EEOC will investigate the matter and either notify the person of his or her right to file a lawsuit or file a lawsuit on the person's behalf.

4. How many charges has EEOC received alleging violations of GINA?

To date, EEOC has received more than 700 charges under GINA and has resolved nearly 600 of those charges. See http://www.eeoc.gov/eeoc/statistics/enforcement/genetic.cfm.

5. Where can I find out more information about GINA?

Several documents on EEOC's website provide background information on GINA and explain its employment provisions, including: