Genetic Information Discrimination Apparently is Not Spreading

What if Congress passed a nondiscrimination law and nobody paid any attention?  That may be the primary impact of the federal Genetic Information Nondiscrimination Act of 2008 (GINA).

GINA bans discrimination on the basis of genetic information in employment (as well as the provision of health insurance). Employers are barred from seeking, obtaining or using a worker’s genetic test results, the genetic test results of a worker’s family members, or a worker’s family medical history, in making employment decisions.

Few Cases, No Results

Despite the passage of the law in 2008, very few GINA-based charges are being filed with the Equal Employment Opportunity Commission (EEOC).  In 2019, there were just 209 such charges, representing 0.3% of all charges filed with the agency.  Moreover, since the statute’s enactment, the EEOC has only filed 12 lawsuits under GINA and none of them actually asserted that an employee was discriminated against on the basis of their medical history or that of a family member. Instead, they allege that the employer improperly sought the information, typically in the context of employee health assessments.

The landscape in private litigation is equally sparse.  Since GINA’s enactment, there has not been a single successful legal action filed under the law. A few higher profile cases have settled, and no doubt other claims or potential claims have as well, but not a single court case pursuing claims under this Act have been successfully decided in favor of the worker.

Diagnosing the Issue

There probably are a number of explanations for this paucity of legal claims in what is otherwise a vast ocean of employment-related litigation.  For one thing, GINA claims may often be confused with claims under the Americans With Disabilities Act (ADA), especially that part of the ADA that bans discrimination against persons regarded as disabled.  GINA claims relate to personal or family medical histories, and the fear that an employee might develop a medical condition in the future.  The more common scenario, however, is that the employee already has a medical condition and claims that they have been discriminated against because of that condition even though it does not affect a major life activity.  That is an ADA “regarded as” case, not a GINA claim.

In addition, employers typically do not have access to employee or family medical histories except through accepted practices relating to pre-employment (or pre-placement) physical exams, voluntary wellness programs or requests for Family and Medical Leave (FMLA) to care for a sick family member.  In those situations, protections for employee medical information are typically observed quite carefully.

Bottom Line

Was GINA a cure for a problem that did not actually exist or has it actually done the job of insuring nondiscrimination on the basis of medical history?  Test results are inconclusive thus far but it will be interesting to see if any significant GINA-related litigation is heading our way.