Title II – Prohibiting Employment Discrimination on the Basis of Genetic Information
This title prohibits employers, labor unions, employment agencies, joint labor-management training and apprenticeship programs (“employers”) from discriminating against employees or applicants17 based on genetic information and from using genetic information in employment decisions.18 It is generally illegal to acquire genetic information about an employee or applicant, subject to six primary exceptions.19
The first exception, similar to the incidental exception available to health plans and issuers is an “inadvertent collection” exception that applies in situations where an employer unintentionally acquires an employee’s genetic information.20 The second exception covers the acquisition of genetic information in conjunction with the provision of voluntary employer-sponsored health or genetic services.21 The employer may acquire genetic information in aggregate terms that do not disclose the identity of any individual from such services if participating employees provide prior written authorization. The third exception allows employers to certify an employee’s family medical leave.22 The fourth exception permits acquisition of genetic information through commercially and publicly available documents,23 if the employer does not purchase the documents intending to acquire genetic information.24 The fifth exception applies to monitoring the biological effects of toxic substances in the workplace, where such monitoring is either required by law or is voluntary and consented to by the employee in a prior written authorization.25 In this circumstance, the employer may acquire genetic information in aggregate terms if the employer provides the employee with written notice of the monitoring, informs the employee of the results and complies with applicable Federal and State genetic monitoring regulations. The sixth and final exception applies to employers that analyze DNA for law enforcement purposes.26 These employers may acquire genetic information to analyze DNA markers of employees in order to detect sample contamination. 27
This title also governs the confidentiality of acquired genetic information. This information must be kept confidential and in a medical record separate from the employee’s personnel file.28 Genetic information may be disclosed to the employee at his written request;29 to an occupational or health researcher;30 to comply with the FMLA or equivalent State law;31 to a government entity investigating compliance with title II;32 to a public health organization, if the information concerns a contagious disease that presents an imminent threat of serious harm or death and the employee is informed of the disclosure,33 and pursuant to a court order34 expressly authorizing disclosure of the information.35
The provisions of Title II apply to public and private employers,36 and the remedies available for violations of this title will be those remedies outlined within the regulations governing each type of employer group. For example, employers in the private sector subject to the enforcement provisions of Title VII of the Civil Rights Act of 196437 who discriminate against employees on the basis of genetic information would face the penalties listed within Title VII, which could include back pay, reinstatement and compensatory damages as high as $300,000 for the largest employers.38
Footnotes
- 17. Scope of application found in GINA Title II, § 201(2)(A), 42 U.S.C. 2000ff(2)(A).
- 18. GINA Title II, § 202(a), 42 U.S.C. 2000ff-1(a) (with respect to employers); GINA Title II, § 203(a), 42 U.S.C. 2000ff-2(a) (with respect to employment agencies); GINA Title II, § 204(a), 42 U.S.C. 2000ff-3(a) (with respect to labor organizations); GINA Title II, § 205(a), 42 U.S.C. 2000ff-4(a) (with respect to joint labor-management training and apprenticeship programs).
- 19. GINA Title II, § 202(b), 42 U.S.C. 2000ff-1(b) (with respect to employers); GINA Title II, § 203(b), 42 U.S.C. 2000ff-2(b) (with respect to employment agencies); GINA Title II, § 204(b), 42 U.S.C. 2000ff-3(b) (with respect to labor organizations); GINA Title II, § 205(b), 42 U.S.C. 2000ff-4(b) (with respect to joint labor-management training and apprenticeship programs).
- 20. GINA Title II, § 202(b)(1), 42 U.S.C. 2000ff-1(b)(1) (with respect to employers); GINA Title II, § 203(b)(1), 42 U.S.C. 2000ff-2(b)(1) (with respect to employment agencies); GINA Title II, § 204(b)(1), 42 U.S.C. 2000ff-3(b)(1) (with respect to labor organizations); GINA Title II, § 205(b)(1), 42 U.S.C. 2000ff-4(b)(1) (with respect to joint labor-management training and apprenticeship programs).
- 21. GINA Title II, § 202(b)(2), 42 U.S.C. 2000ff-1(b)(2) (with respect to employers); GINA Title II, § 203(b)(2), 42 U.S.C. 2000ff-2(b)(2) (with respect to employment agencies); GINA Title II, § 204(b)(2), 42 U.S.C. 2000ff-3(b)(2) (with respect to labor organizations); GINA Title II, § 205(b)(2), 42 U.S.C. 2000ff-4(b)(2) (with respect to joint labor-management training and apprenticeship programs).
- 22. GINA Title II, § 202(b)(3), 42 U.S.C. 2000ff-1(b)(3) (with respect to employers); GINA Title II, § 203(b)(3), 42 U.S.C. 2000ff-2(b)(3) (with respect to employment agencies); GINA Title II, § 204(b)(3), 42 U.S.C. 2000ff-3(b)(3) (with respect to labor organizations); GINA Title II, § 205(b)(3), 42 U.S.C. 2000ff-4(b)(3) (with respect to joint labor-management training and apprenticeship programs).
- 23. Commercially and publicly available documents include newspapers, magazines, periodicals and books, but does not include medical databases or court records. GINA Title II, § 202(b)(4), 42 U.S.C. 2000ff-1(b)(4) (with respect to employers); GINA Title II, § 203(b)(4), 42 U.S.C. 2000ff-2(b)(4) (with respect to employment agencies); GINA Title II, § 204(b)(4), 42 U.S.C. 2000ff-3(b)(4) (with respect to labor organizations); GINA Title II, § 205(b)(4), 42 U.S.C. 2000ff-4(b)(4) (with respect to joint labor-management training and apprenticeship programs).
- 24. Equal Opportunity Employment Commission website, “Rules Against Acquiring Genetic Information” (available at: www.eeoc.gov/laws/types/genetic.cfm).
- 25. GINA Title II, § 202(b)(5), 42 U.S.C. 2000ff-1(b)(5) (with respect to employers); GINA Title II, § 203(b)(5), 42 U.S.C. 2000ff-2(b)(5) (with respect to employment agencies); GINA Title II, § 204(b)(5), 42 U.S.C. 2000ff-3(b)(5) (with respect to labor organizations); GINA Title II, § 205(b)(5), 42 U.S.C. 2000ff-4(b)(5) (with respect to joint labor-management training and apprenticeship programs).
- 26. These employers are forensic laboratories and businesses that analyze DNA for purpose of human remains identification. GINA Title II, § 202(b)(6), 42 U.S.C. 2000ff-1(b)(6) (with respect to employers); GINA Title II, § 205(b)(6), 42 U.S.C. 2000ff-4(b)(6) (with respect to joint labor-management training and apprenticeship programs).
- 27. GINA Title II, § 202(b)(6), 42 U.S.C. 2000ff-1(b)(6) (with respect to employers); GINA Title II, § 205(b)(6), 42 U.S.C. 2000ff-4(b)(6) (with respect to joint labor-management training and apprenticeship programs).
- 28. GINA Title II, § 206(a), 42 U.S.C. 2000ff-5(a)
- 29. GINA Title II, § 206(b)(1), 42 U.S.C. 2000ff-5(b)(1).
- 30. GINA Title II, § 206(b)(2), 42 U.S.C. 2000ff-5(b)(2).
- 31. GINA Title II, § 206(b)(5), 42 U.S.C. 2000ff-5(b)(5).
- 32. GINA Title II, § 206(b)(4), 42 U.S.C. 2000ff-5(b)(4).
- 33. GINA Title II, § 206(b)(6), 42 U.S.C. 2000ff-5(b)(6).
- 34. If the employee is unaware of the court order, the employer must inform him of the court order and what information it disclosed. GINA Title II, § 206(b)(3)(B), 42 U.S.C. 2000ff-5(b)(3)(B).
- 35. GINA Title II, § 206(b)(3), 42 U.S.C. 2000ff-5(b)(3).
- 36. GINA Title II, § 207.
- 37. GINA Title II, § 207(a).
- 38. Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-4 et seq.
.png)