The Genetic Information Nondiscrimination Act of 2008 (GINA)

The “Genetic Information Nondiscrimination Act of 2008 (GINA) is a federal law, codified at 42 U.S.C. §§ 2000ff et seq., that (in a nutshell) “discrimination on the basis of genetic information with respect to health insurance and employment.”

In enacting GINA, Congress set forth the following findings:

Deciphering the sequence of the human genome and other advances in genetics open major new opportunities for medical progress. New knowledge about the genetic basis of illness will allow for earlier detection of illnesses, often before symptoms have begun. Genetic testing can allow individuals to take steps to reduce the likelihood that they will contract a particular disorder. New knowledge about genetics may allow for the development of better therapies that are more effective against disease or have fewer side effects than current treatments. These advances give rise to the potential misuse of genetic information to discriminate in health insurance and employment.

42 U.S.C. § 2000ff § 2(1).

In light of the potential for misuse of genetic information, Congress identified a “compelling public interest in relieving the fear of discrimination and in prohibiting its actual practice in employment and health insurance.” Id. § 2(4).

The statute

restricts the circumstances under which an employer may request or use genetic information, which includes information about an individual’s “genetic tests, the genetic tests of family members of such individual, and the manifestation of a disease or disorder in family members of such individual.” 42 U.S.C. § 2000ff(4)(A). Under the Act, it is unlawful for an employer either “to request, require, or purchase genetic information with respect to an employee or a family member of the employee,” 42 U.S.C. § 2000ff-1(b), or to discriminate against an employee or prospective employee because of genetic information with respect to the employee, id. § 2000ff-1(a). The term “employee,” as used in GINA, includes “an applicant for employment.” 29 C.F.R. § 1635.2(c).

Hawkins v. Jamaica Hospital Medical Center, 2018 WL 3134415 (E.D.N.Y. 2018).

GINA also “explicitly incorporates the requirement that a person aggrieved by an unlawful employment practice must file a charge with the EEOC within 180 or 300 days of the occurrence of the unlawful practice, which is also known as the administrative exhaustion requirement.” Hawkins v. Jamaica Hospital Medical Center, 2018 WL 3134415, *3 (E.D.N.Y. 2018) (citing 42 U.S.C. § 2000e-5(e)(1)).

The statute, inter alia, makes it an unlawful employment practice for an employer

(1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or

(2) to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.

42 U.S.C. § 2000ff–4 (emphasis added).

It defines “genetic information” as “(i) such individual’s genetic tests, (ii) the genetic tests of family members of such individual, and (iii) the manifestation of a disease or disorder in family members of such individual.” 42 U.S.C. § 2000ff(4).