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The Genetic Information Nondiscrimination Act

The Genetic Information Nondiscrimination Act of 2008 ("GINA") took effect on November 21, 2009.  GINA protects individuals from employment discrimination based on their genetic information.  Here's the view of GINA from 30,000 feet.

1.     GINA applies to employers with 15 or more employees, employment agencies and labor organizations.   Joint labor-management committees controlling apprenticeship or other training programs are also prohibited from discriminating based on genetic information. 2.     GINA prohibits discrimination.  GINA's protections are very broad.  GINA protects employees from discrimination in the terms and conditions of employment based on genetic information.  This includes the failure to hire, promote or provide training, to segregate or classify the employee in any way that would deprive the employee of employment opportunities and to discharge or discriminate in any manner with respect to compensation, terms, conditions or privileges or employment.   3.     GINA prohibits discrimination on the basis of genetic information.   "Genetic information" means information about 1) an individual's genetic tests; 2) the genetic tests of family members of such individual, and 3) the manifestation of a disease or disorder in family members of such individual. 4.     GINA prohibits the acquisition and disclosure of genetic information.  GINA prohibits, subject to a short list of exceptions, covered entities from acquiring and disclosing genetic information of an individual or family members of the individual. 5.    GINA prohibits retaliation against individuals who have complained about GINA violations.  GINA prohibits retaliation against an individual for making a complaint to the employer or the Equal Employment Opportunity Commission ("EEOC") about GINA violations, testifying, assisting or participating in a GINA investigation, proceeding or hearing, or opposing a practice he believes to be a violation of GINA.  The idea here is that no one would enjoy the protections of GINA if their employers could terminate them for insisting on compliance with the law.  So, the law prohibits retaliation against those who do.  Also, I expect the courts to follow precedent in holding that an employee doesn't have to be right about his complaint under GINA to be protected from retaliation, so long as he has an objective good faith belief a violation has occurred.  6.    GINA allows for the recovery of a broad range of damages and relief.  Victims of genetic information discrimination may file a lawsuit (after filing a charge with the EEOC) and if they prevail in court may recover damages for lost wages and benefits in the past and future, mental anguish, punitive damages, attorneys fees, court costs, injunctive relief and reinstatement.  Mental anguish damages and punitive damages are subject to caps based on the number of employees of the employer.  The maximum amount of mental anguish and punitive damages combined an individual can recover is $300,000, assuming the employer has at least 500 employees. The good news here for employees is Congress has acted preemptively to prevent an invidious form of discrimination before it has taken root and spread.   Employers should consult with an employment law specialist to obtain a full understanding of its obligation under GINA with regard to the acquisition, handling and disclosure of genetic information.  GSF

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