Often Overlooked GINA Can Prove Costly

Dolgencorp, LLC, which does business as Dollar General, has agreed to pay $1 million and take other steps to settle an Equal Employment Opportunity Commission (EEOC) lawsuit that accused it of violating federal law by requiring job applicants to disclose their family medical histories as part of the hiring process.

The EEOC filed its suit (EEOC v. Dolgencorp) on behalf of 498 job applicants who were allegedly forced to reveal family medical histories. The suit separately alleged that the employer violated the Americans with Disabilities Act (ADA) by using qualification standards that wrongfully screened out qualified people with disabilities. For example, it said Dollar General's rules about blood pressure and visual acuity were stricter than needed to ensure safe job performance.

What's GINA all about — and what is the risk?

GINA makes it illegal to discriminate against applicants or employees based on their genetic information. In addition, it prohibits employers for asking for, requiring or buying genetic information about any applicant or employee.

In comparison to other federal nondiscrimination laws, GINA has been largely overlooked because it has neither been heavily litigated nor a strong focus of EEOC enforcement efforts.

The relative lack of attention is staggering. For example, the EEOC reported that for Fiscal Year 2022, it received just over 25,000 charges under the ADA. The number of charges alleging GINA violations for the same fiscal year? 444.

But that lack of enforcement activity does not mean that GINA carries any less bite.

More specifics about GINA

As the EEOC puts it, clearly and bluntly:

An employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual's current ability to work.

Under the law, "genetic information" includes genetic testing information relating to an individual or their family members. Importantly, it also includes information about a history of disease or disorder in an individual's family members.

That is a point worth repeating: GINA's ban on discrimination is broad enough to include a ban on asking questions about family medical history.

Genetic information also includes:

• An individual's request for or receipt of genetic services.
• Participation in clinical research that includes genetic services.
• Genetic information of a fetus carried by an individual or a pregnant family member.
• Genetic information of an embryo that is legally held by an individual or family member via assisted reproductive technology.

Six exceptions

There are six exceptions to the general prohibition against acquiring genetic information. Employers are generally off the hook if the genetic information is:

• Acquired accidentally.
• Received as part of a health or genetic service made available to employees voluntarily.
• Received to comply with Family and Medical Leave Act (FMLA) certification requirements or similar requirements under state or local law, or certain employer leave policies.
• Acquired from a public source, such as a website that is accessible to the public.
• Obtained as part of a genetic monitoring program, as long as the program is either legally required or voluntary.
• Acquired by employers who conduct DNA testing for law enforcement purposes as a forensic lab or to identify human remains.

Five quick compliance tips

Here are some specific tips to help avoid potentially costly GINA violations.

• Be proactive — tell employees and their healthcare providers not to give you genetic information, such as in connection with a request for medical leave or a request for reasonable accommodation under the ADA.
• Tell your healthcare providers not to collect genetic information as part of any employment-related medical examination.
• Remember that lawfully obtained genetic information must be kept confidential and in a separate file.
• Do not retaliate against any individual for filing a charge of discrimination or participating in a proceeding related to GINA.
• Make it clear to managers and employees that harassment based on genetic information is strictly prohibited. This includes information about applicants and employees as well as their family members.