USA: Genetic Information Nondiscrimination Act (GINA)

von Dr. Axel Spies, veröffentlicht am 22.05.2008
Rechtsgebiete: ArbeitsrechtDiskriminierungGenetic|4757 Aufrufe

After over a decade of consideration, the U.S. Congress has passed and President Bush has signed the Genetic Information Nondiscrimination Act (GINA), a bill that seeks to prevent employers and health insurers from using genetic testing as a basis for discrimination against job applicants and employees.

Under GINA, health insurers cannot raise insurance premiums or deny individuals medical insurance coverage based upon their specific genetic information. Employers, too, are prevented from using this sort of information as the basis for hiring or other employment-related decisions.

Employers' representatives have described the passage of GINA as a non-event because employers do not use genetic information in their employee-related decisions. Already, numerous laws banning discrimination in employment based on genetic information exist in more than 30 states with very little litigation commenced in this area.

Some employers describe GINA as "legislation in search of a problem." Employers' representatives, however, do agree that GINA may prove helpful in allaying an individual employee's fears of losing a job if the employee submits to genetic testing and some disease potential is revealed.

Specific Provisions

Employment

  • No employer shall fail or refuse to hire any applicant or discharge any employee, or otherwise discriminate with respect to the compensation, terms, conditions or privileges of employment, because of an individual's genetic information.
  • No employer shall limit, segregate or classify an employee in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of an employee because of that individual's genetic information.
  • No employer shall request, require or purchase genetic information with respect to an employee or an employee's family member except where an employer inadvertently requests or requires family medical history or under specific protections for specific justifiable events (including a bona fide employer-run wellness program, or genetic monitoring of toxic substances).
  • No employment agency shall fail or refuse to refer for employment, or otherwise discriminate against, any individual based upon that individual's genetic information.
  • No employment agency shall segregate or classify individuals or refuse to refer for employment or deprive of employment or otherwise adversely affect the status of an individual as an applicant or employee due to genetic information.
  • No employer or employment agency shall request, require or purchase the genetic information of an individual or an individual's family member unless specific protections are provided.
  • Similar anti-discrimination and confidentiality protections apply to labor organizations and training, apprenticeship or retraining programs.

Employer Take-Away

Private employees who raise GINA complaints are covered by all other anti-discrimination laws and the present Title VII protections and process, but they do not have the ability to raise "disparate impact" GINA causes of action. What this GINA limitation means is that private employees can sue their employer only if they can establish that the employer took an adverse employment action against them individually based on their genetic status. Employees may not attack general policies and practices of the employer that allegedly impact protected employees differentially in the absence of any intentional adverse action against them individually.

GINA has teeth and is backed by anti-discrimination laws that are just as effective as the protections against discrimination based upon race, age, sex, religion, disability and national origin.

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