Genetic Information Nondiscrimination Act of 2008 (GINA), Public Law No: 110-233]
GINA creates a new federal cause of action with the prospect of jury trials and damages, drawing authority directly from Title VII of the Civil Rights Act of 1991 and other federal employment laws. As under Title VII, workers claiming discrimination based on their genetic information must file an Equal Employment Opportunity Commission charge before proceeding to court. EEOC will investigate and try to settle the charge before either suing on behalf of the worker or issuing a right-to-sue letter that permits the individual to sue.
GINA's employment title takes effect 18 months after enactment (May 21, 2008) and the act requires EEOC to issue final regulations within a year of enactment. Though never tested in court, the EEOC position since the 1990s has been that an employer's use or reliance on an individual's genetic data in making an employment decision could support a "regarded as" disabled claim under the ADA.
GINA applies to labor unions as well and prohibits employers from discharging, refusing to hire, or otherwise discriminating against employees on the basis of genetic information. The law amends the Employee Retirement Income Security Act and the Public Service Health Act to preclude discrimination by group health plans and health insurance issuers against individuals based on genetic information and prohibits insurers from requiring genetic tests.
Regarding employment discrimination, the law:
- prohibits discrimination on the basis of genetic information in hiring, compensation, and other personnel processes;
- prohibits the collection of genetic information by employers and allows workplace genetic testing only in very limited circumstances, such as monitoring the adverse effects of hazardous workplace exposures;
- requires genetic information possessed by employers to be confidentially maintained and disclosed only to the employee or under other tightly controlled circumstances;
- prohibits health insurance enrollment restriction and premium adjustment on the basis of genetic information or genetic services;
- prevents health plans and insurers from requesting or requiring that an individual take a genetic test; and
- covers all health insurance programs, including those under ERISA,
state-regulated plans, and the individual market.
A worker seeking damages through the Civil Rights Act of 1991, can seek a jury trial in cases of intentional discrimination. As in cases under Title VII and the Americans with Disabilities Act, compensatory and punitive damages for genetic bias would be capped at $300,000 or lower, depending on the size of the defendant employer. Workers also may recover equitable relief, which includes back pay and front pay.
Unlike Title VII, GINA specifically states that "disparate impact" claims are not recognized in genetic bias cases. Instead, the act provides that six years after enactment, Congress will appoint an eight-member commission to review the developing science of genetics and make recommendations on whether to add liability for neutral employment practices that may have an adverse impact against individuals based on genetic information.
An employer, union, or employment agency that obtains genetic information on an employee or member must treat it as a confidential medical record in a file separate from personnel records. An employer or other covered entity will be considered in compliance with GINA if it adheres to the ADA's confidential medical records provision.
Like Title VII, GINA prohibits retaliation against any individual "who has opposed any act or practice made unlawful" by the act's employment title or who participates in an investigation, proceeding, or hearing under the act. GINA does not preempt other federal or state laws that may provide equal or greater protection against genetic bias, including the ADA and the Rehabilitation Act.
Sexual Harassment Regulations
Sexual Harassment: The unwanted imposition of sexual requirements in
the context of a[n employment] relationship of unequal power. -Catherine
MacKinnon.
According to EEOC Guidelines [29 CFR 1604.11; FR Nov. 10, 1980]:
(a) Harassment on the basis of sex in violation of Sec. 703 of Title VII and HRCC rules [HAR
12-46-109];
unwelcome sexual advances, request for sexual favors, and other verbal or
physical conduct of a sexual nature constitute sexual harassment when (1)
submission to such conduct is made either explicitly or implicitly a term or
condition of an individual's employment, (2) submission to or rejection of such
conduct by an individual is used as the basis for employment decisions affecting
such individual, or (3) such conduct has the purpose or effect of unreasonably
interfering with an individual's work performance or creating an intimidating,
hostile, or offensive working environment. ...
(c) Applying general Title VII principles, an employer, employment agency, joint
apprenticeship committee or labor organization (hereinafter collectively
referred to as 'employer) is responsible for its acts and those of its agents
and supervisory employees with respect to sexual harassment regardless of
whether the specific acts complained of were authorized or even forbidden by the
employer and regardless of whether the employer knew or should have known of
their occurrence. ...
(d) With respect to conduct between fellow employees, an employer is responsible
for acts of sexual harassment in the workplace where the employer (or its agents
or supervisory employees) knows or should have known of the conduct, unless it
can show that it took immediate and appropriate corrective action. ...
(e) an employer may also be responsible for the acts of non-employees, with
respect to sexual harassment of employees in the workplace where the employer
(or its agents or supervisory employees) knows or should have known of the
conduct and fails to take immediate and appropriate corrective action. ...
(f) Prevention is the best tool for the elimination of sexual harassment. An
employer should take all steps necessary to prevent sexual harassment from
occurring, such as affirmatively raising the subject, expressing strong
disapproval, developing appropriate sanctions, informing employees of their
right to raise the issue of harassment under Title VII and Part I, HRS 378, and developing
methods
to sensitize all concerned.
(g) Other related practices: Where employment opportunities or benefits are
granted because of an individual's submission to the employer's sexual advances
or requests for sexual favors, the employer may be held liable for unlawful sex
discrimination against other persons who were qualified for but denied that
employment opportunity or benefit.