The New York Law Journal
By James E. Kellett
August 11, 2008
The ink is barely dry on new employment laws before summaries, citations and warnings land in corporate e-mails around the country. So too with "GINA," the Genetic Information Nondiscrimination Act of 2008, which will become effective in November 2009.1 The basic principles of GINA have been well publicized; simply put, under Title II of the act, employers cannot discriminate against applicants or employees on the basis of their genetic predispositions.GINA makes it unlawful for an employer "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 of employment of the employee because of genetic information with respect to the employee." It further makes it unlawful "to limit, segregate, or classify the employees of an 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." The act includes employment agencies, labor organizations and training programs in the nondiscrimination provisions, and also makes acquisition of genetic information unlawful, with certain specific exceptions. There are further obligations set forth in the act related to the confidentiality and disclosure of genetic information.2To some, GINA may simply be a new entry into the "alphabet soup" of statutes governing employment in the United States, or another administrative burden and another set of potential legal liabilities for employers. There is, however, a web of legal, social and scientific influences behind the act that provide a noteworthy historical perspective on genetic testing. Looking forward, the potential interactions of GINA with various other statutes, including the Americans with Disabilities Act (ADA)3 and the Family and Medical Leave Act (FMLA)4 will present interesting challenges. It may be that a new "Bermuda Triangle" is in the making, the catchphrase given to the sometimes complex overlap of the ADA, FMLA, and Workers' Compensation statutes.Potential complications in the application of the act are reviewed here, preceded by a survey of historical reference points leading to its enactment.History of the ActWas GINA simply a successful democratic movement in Congress to add more employee protections in the workplace? Hardly. In 2007 the House passed the bill by a vote of 420 to 3, and in 2008 the Senate did so by 95 to 0. Was it a recently contrived attempt to make government seem ahead of the scientific curve by legislating the use of genetic information? Again, hardly. GINA has been at least 13 years in the making, being first introduced in 1995.In her remarks to Congress in support of GINA in 2007 Senator Olympia J. Snowe, R-Maine, described this as an action to "prevent discrimination before it has taken firm hold . . . . For in the past Congress has had to act to address existing discrimination. But today we are acting proactively to address genetic bias, before discrimination becomes entrenched."5 To the extent that these comments were interpreted to suggest that genetic bias had not yet occurred, quite the opposite is true. Rather, dramatic events have taken place over the last century that have a rightful place in the history of genetic testing laws. [To read the entire article, go to: http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202423639111 [
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