Employment Law Alert – Congress Enacts New Anti-Discrimination Law

January 04, 2010

On November 21, 2009, the Genetic Information Nondiscrimination Act (GINA) became effective.  GINA applies to employers of 15 or more employees, and makes it illegal to discriminate against applicants or employees on the basis of genetic information.  The law also limits an employer’s acquisition and disclosure of such genetic information.

What is “Genetic Information”?
Genetic Information can include (1) an applicant’s or employee’s genetic tests, such as analysis of DNA or chromosomes that detects genotypes, mutations or chromosomal changes; (2) the genetic tests of an applicant’s or employee’s family members; or (3) the manifestation of a disease or disorder in an applicant’s or employee’s family members.

Genetic Information does not include medical information about an applicant’s or employee’s manifested disease, disorder or pathological condition.  Such information may, however, be protected under other laws such as the Americans with Disabilities Act (ADA) or the California Medical Information Act (CMIA).

What Conduct Does GINA Prohibit?
GINA prohibits:

  • Intentional discrimination on the basis of an applicant’s or employee’s Genetic Information in any aspect of employment
  • Harassment due to or based on an employee’s Genetic Information
  • Retaliation against an applicant or employee for opposing discrimination due to or based on Genetic Information
  • Acquisition of Genetic Information with respect to an employee or an employee’s family member, unless an exception applies

There are many ways employers may unintentionally acquire Genetic Information.  GINA does not prohibit the acquisition of Genetic Information in the following situations:

  • Where an employer inadvertently acquires Genetic Information, such as overhearing an employee talking about a family member’s illness
  • Where an employee requests time off to care for a family member with a serious health condition, and discloses Genetic Information while going through the family medical leave certification process
  • Where an employee discloses Genetic Information as part of a wellness program offered by the employer, where participation is voluntary (and other conditions are met)
  • Where an employee discloses Genetic Information through a program that monitors the biological effects of toxic substances in the workplaces (provided defined conditions are met)

How Does GINA Limit Disclosure of Genetic Information?
Employers must keep any Genetic Information they receive or acquire in a separate, confidential medical file.  This information must not be kept in the employee’s regular personnel file.  It is unlawful for an employer to disclose any Genetic Information about applicants or employees except under very limited circumstances.

What Remedies do Applicants or Employees Have if GINA is Violated?
Applicants or employees must file administrative charges with the Equal Employment Opportunity Commission before pursuing civil litigation.  GINA makes available the remedies and enforcement procedures prescribed under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.

If you have any questions regarding these changes or how they affect your business, please contact Kara Arguello or any member of Berliner Cohen’s Employment Law Group:

Roberta S. Hayashi

Christine Long

Kara L. Arguello



©2010 Berliner Cohen.  This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship and no attorney-client relationship is created through your use of the Berliner Site or your receipt of the materials.

Berliner Cohen’s experienced employment law attorneys advise and represent employers and managers on a full range of legal issues affecting the workplace, including harassment and discrimination, unfair competition and trade secrets, wrongful discharge, wage and hour issues, and labor disputes.  Berliner Cohen is one of the largest law firms in San Jose serving the business and regulatory needs of private business and public agencies.  For 40 years, the Firm has developed the special expertise required by a diverse client base consisting of nationally recognized business interests and a number of Silicon Valley’s largest national and multinational corporations, new ventures, leading real estate developers and brokerages, cutting-edge technology companies, healthcare and other service providers, banking and financial institutions, municipalities, public agencies and individuals.  Berliner Cohen also meets the growing demands of the San Joaquin Valley with its expanding office in Merced.