How is “Genetic Information” defined under GINA?
GINA defines “genetic information” as information concerning an individual’s genetic tests, an individual’s family members’ genetic tests, and the “manifestation” of a disease in any family member of an individual. Thus, in essence, GINA is designed to prevent employment discrimination based on an employer’s belief that an employee or applicant is likely to develop a disease.
Because GINA’s purpose deals with the predictive nature of genetic information, courts have held that illnesses of family members will not be “genetic information,” within the meaning of GINA if such information could not be used to predict the manifestation of diseases in the individual.
For example, information that an employee’s wife was diagnosed with multiple sclerosis would not be considered genetic information because such information would have no bearing on the employee’s propensity to develop a disease (of course termination for a family member’s illness may violate the Family Medical Leave Act, discussed elsewhere on this site).
Due to the facts that GINA is a relatively new law and that genetic employment discrimination litigation is uncommon in the federal courts, there is very little case law on the tests and/or frameworks a court would use when resolving a GINA claim. However, retaliation claims under GINA are considered under the same analytical framework of Title VII retaliation causes of action. Additionally, at least one court has called into question whether a GINA cause of action may be brought against a state entity.
In addition to the foregoing, early cases have focused primarily on exhaustion of administrative remedies and whether an employer had knowledge of the employee’s genetic information. GINA’s implementing regulations have incorporated by reference the exhaustion requirements of other employment discrimination statutes. Accordingly, it is crucial that an employee who believes he has been discriminated against on the basis of genetic information exhaust his administrative remedies prior to pursuing his claim in court. Courts considering exhaustion of GINA remedies have used a similar analysis as to claims brought under Title VII.
Where courts have considered employer knowledge, they have not done so under a standardized test. However, given the focus on employer knowledge and the logical connection between genetic information and disabilities, it is likely that a court faced with a GINA claim would employ a prima facie standard and burden shifting framework similar the one applied in cases brought under the Americans with Disabilities Act (ADA).
Derek Smith
9 min. read
Derek Smith