By Clifford S. Anderson, Esq.

For years, employers have faced the prospect of federal and state law employment discrimination claims based on race, color, creed, religion, national origin, sex, marital status, status with regards to public assistance, age, gender, disability, sexual orientation, and age. Soon, another major category of persons will be protected under federal law. The new class of covered persons has emerged due to the exponential evolution in technology and science, in this case, in the field of genetics. The scientific advances in mapping the human genome and testing technologies resulting from that effort have resulted in the potential for discrimination on the basis of genetic information.

The risk of discrimination based on genetic information has been recognized and prohibited in Minnesota for several years. See, e.g., Minn. Stat. §§ 72A.139 & 181.974. Now, the federal government has passed a set of roughly comparable protections for this relatively new class of covered persons. Specifically, Congress passed, and President George W. Bush signed, on May 21, 2008, the Genetic Information Nondiscrimination Act ("GINA") of 2008 (P.L. 110-233, 122 Stat. 881, to be codified at 42 U.S.C. § 2000ff et seq.). This new federal law prohibits discrimination in both health coverage and employment based on genetic information. Among other things, GINA will establish a national and uniform basic standard that will harmonize the existing patchwork of state and federal laws applicable to the issue of discrimination based on genetic information.

Title I of the Act and Comparable Minnesota Law

The section of GINA relating to health coverage (Title I), which amends portions of the Employee Retirement Income Security Act ("ERISA"), the Public Health Service Act, and the Internal Revenue Code, generally will take effect between May 22, 2009, and May 21, 2010 depending upon the start date of the "plan year" in the year that follows the one-year anniversary of GINA's May 2008 enactment for the group health plan under consideration. Generally speaking, GINA, together with already existing nondiscrimination provisions of the Health Insurance Portability and Accountability Act ("HIPPA"), will prohibit health insurers or health plan administrators from requesting or requiring "genetic information" of an individual or the individual's family members, or using it for decisions regarding coverage, rates, or preexisting conditions. "Genetic information" includes genetic tests of an individual or the individual's family members (including tests of any fetus); the manifestation of disease or disorder in family members (i.e., family history); and request for, or receipt of, genetic services or participation in clinical research that includes genetic services (i.e., genetic testing, counseling, or education) by an individual or family member. "Genetic information" does not include information about the sex or age of any individual.

Minnesota law is comparable but somewhat broader in its protections in that it also prohibits inquiry into the mere fact that an individual or individual's family member refused a genetic test. See generally Minn. Stat. § 72A.139, subd. 3.

Both federal and state law define "genetic test" similarly. Under federal law, the statute defines "genetic test" as "an analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes." Minnesota law defines "genetic test" to be a "presymptomatic test of a person's genes, gene products, or chromosomes for the purpose of determining the presence or absence of a gene or genes that exhibit abnormalities, defects, or deficiencies, including carrier status, that are know to be the cause of a disease or disorder, or are determined to be associated with a statistically increased risk of development of a disease or disorder." Minn. Stat. § 72A.139, subd. 2.

Title II of the Act and Comparable Minnesota Law

Title II of GINA prohibits the intentional acquisition of genetic information about applicants and employees; makes it unlawful for an employer to discriminate against an individual on the basis of "genetic information" in regard to hiring, discharge, compensation, terms, conditions, or privileges of employment; and imposes strict confidentiality requirements. Employers are not liable for inadvertent acquisition of genetic information about their employees (the so called "water cooler" exception) or where an employer receives genetic information as part of documentation an employee voluntarily submits in support of a request for reasonable accommodation under the Americans with Disabilities Act ("ADA") or other similar laws. There are other minor exceptions as well. Finally, the proposed regulations of the Equal Employment Opportunity Commission ("EEOC") interpret Congressional intent as prohibiting retaliation against any individual who complaints of a violation of GINA.

As the law is currently drafted, disparate impact claims are not permitted under Title of GINA. However, the Act directs that a commission be formed six years after enactment to assess the merits of whether to permit disparate impact claims. GINA also does not explicitly prohibit harassment based on genetic information but the language used by Congress in the statute is comparable to other equal employment opportunity statutes, which evidences an intent by Congress to prohibit harassment discrimination based on genetic information.

Title II applies to private and state local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs. Title II of GINA is effective on November 21, 2009.

Title II of GINA does not preempt state or local law that provides equal or greater protections from employment discrimination on the basis of genetic information or improper access or disclosure of genetic information. Additionally, GINA does not limit the rights or protections under other federal, state, or local laws that provide greater privacy protections to genetic information nor does it impact an individual's rights under the ADA, the Rehabilitation Act, or state or local laws that prohibit the discrimination on the basis of ability. On the other hand, Title II of GINA does prohibit an employer from obtaining genetic information following a job offer which differs from existing law under the ADA allowing the obtaining of such information if required of all persons offered jobs.

Minnesota law is generally similar to Title II of GINA. However, Minnesota law applies to all employers defined as any "person having one or more employees in Minnesota." Minn. Stat. § 181.974, sub. 1(b). Additionally, and interestingly, Minnesota law also makes it unlawful for third parties to "provide or interpret for any employer or employment agency protected genetic information on a current or prospective employee." Minn. Stat. § 181.974, subd. 2(b).

Enforcement and Remedies

Under GINA, the enforcement mechanism applicable, and remedies available, are the same as under Title VII. See generally 42 U.S.C. § 2000e-4 et seq. As for remedies, these include reinstatement, hiring, promotion, back pay, injunctive relief, pecuniary and non-pecuniary damages (including compensatory and punitive damages) and attorneys' fees and costs. Title VII's cap on compensatory and punitive damages and other limitations applicable generally in federal employment discrimination cases also apply to GINA. See 42 U.S.C. § 1981a et seq. Minnesota law is comparable but also allows "up to three times the actual damages suffered due to the violation." Minn. Stat. §181.974, Subd. 3(1).

Practice Pointers

• Determine in all states that you do business whether a comparable state law exists and whether it is more or less restrictive than GINA;

• Educate Human Resources staff and other personnel of the requirements of GINA and applicable state law regarding the handling of genetic information about employees;

• Maintain health information, including genetic information, in files separate from company personnel files and only allow access to such information on a need to know basis and otherwise maintain such information's strict confidentiality; and

• As applicable for your workplace, obtain from the EEOC, at www.eeoc.gov, an updated "EEO is the Law" poster that incorporates GINA and other recent law changes.