Genetic Discrimination

As science advances and genetic testing become more common, many employees are worried about genetic discrimination.  Because of genetics, some people may be more predisposed to conditions like breast cancer or Alzheimer's Disease.  And some people even believe that genetics impacts intelligence, creativity, and other traits.  Can an employer discriminate against an employee because of his or her genes?  The short answer is no.

A federal law, the Genetic Information Nondiscrimination Act (“GINA”) prohibits employers from using an employee’s genetic information, such as susceptibility to disease, in making employment decisions.  Under GINA, “genetic information” can cover genetic tests of you or a family member, requests for genetic tests, participation in genetic research, or the genetic information of your unborn child or the unborn child of a family member.  Nor can employers harass or harmfully classify or segregate employees based on their genetic information.  Texas state law similarly protects employees from discrimination because of their genetic information.

While generally your genetic information is treated as confidential, it is not illegal under GINA for your employer to gain access to your genetic information accidentally, as part of a voluntary employee wellness program, or through publicly available records.  Your employer may access your genetic information if necessary to monitor for toxins in the workplace, though they have to keep you informed of any results they find.  In addition, your employer can also require you to disclose genetic information, such as a family medical history, if you are requesting leave to care for a sick family member. 

Genetic information discrimination is generally treated the same as other forms of discrimination under GINA.  Discrimination cases are investigated by the Equal Employment Opportunity Commission (EEOC).  A lawsuit can be brought in federal court. 

As with most other discrimination laws, GINA has strong protections against retaliation.  An employer may not fire an employee who complains of a violation, or take other action such as a demotion or other changes in employment terms.

Currently there have been very few cases filed concerning genetic information.  But as genetic testing becomes more common, and as we learn more about how our genes affect us, discrimination may become more of an issue.

Contact us if you have been discriminated against because of genetic information or genetic testing.