Congress passed the Genetic Information Non-Discrimination Act (GINA) in 2009. When the bill was signed into law, Sen. Ted Kennedy hailed it as the “first civil rights bill of the new century.” However, the dearth of claims filed under GINA since it became the law of the land calls into question its effectiveness as a deterrent to employment discrimination based on genetics.
Genetic discrimination may seem like something that could only happen in a science fiction novel or a Hollywood movie, but it actually happens in the real world. Discrimination based on genetics occurs anytime a person is treated unfairly because of differences in his or her DNA. For instance, an employer might decide not to hire an applicant whose DNA makes him more susceptible to disease or illness in the future.
What Constitutes “Genetic Information” under GINA?
Genetic information includes information about a person’s genetic tests, genetic tests of a person’s family members, and a person’s family medical history of any disease or disorder. Genetic information does not include information about a person’s age or sex. Additionally, the law treats genetic information as distinct from “manifest disease” when already diagnosed.
GINA states that an employer cannot discriminate against, refuse to hire, or fire a person because of that person’s genetic information. The statute defines “discrimination” broadly so that it applies to virtually any aspect of employment, including recruitment, hiring, firing, job assignments, compensation, promotions, demotions, discipline, harassment, job training, and fringe benefits.
Questioning Federal Enforcement of GINA
The Equal Employment Opportunity Commission (EEOC) is tasked with enforcing GINA. However, records indicate that the EEOC has only recently begun to seriously enforce GINA in federal court. According to the EEOC, 726 charges have been filed under GINA since 2010. These numbers pale in comparison to the number of race, sex, and age discrimination claims filed with the EEOC. In 2012 alone, the EEOC reported more than 33,000 race discrimination claims, more than 30,000 sex discrimination claims, and more than 22,000 age discrimination claims.
Additionally, according to a survey of cases on Westlaw by the National Law Review, a great majority of the GINA charges filed by the EEOC do not survive the dismissal stage in federal court.
Michigan’s Law Prohibiting Employment Discrimination on the Basis of Genetic Information
When GINA passed, Michigan was one of 34 states that already had legislation prohibiting discrimination on the basis of genetic information. Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA) was amended in 2000 to expressly prohibit employers from discriminating against employees on the basis of genetic information when unrelated to the employee’s ability to perform job duties.
The PWDCRA prohibits employers from requiring a person to provide genetic information as a condition of employment. The state law also prevents employers from directly or indirectly acquiring the genetic information of an employee or an applicant for employment.
The Michigan law is quite broad, but it offers less specific prohibitions and defenses than GINA. If you have experienced discrimination based on genetics, know that you have rights and protections under both Michigan and federal law. These rights can help you moving forward.