GINA Under the Microscope: Genetic Testing in Employment

Genetic testing is on the rise, and so are allegations of genetic discrimination.

Genetic testing is on the rise to detect everything from autism to xeroderma pigmentosum. While genetic testing is used primarily to help individuals make personal healthcare decisions, the Genetic Information Nondiscrimination Act of 2008 (GINA) was passed to make sure the results of those test don’t result in discriminatory practices by employers and health insurers.

A UnitedHealthcare paper reports that four percent of patients already have had genetic testing, with the cost of genetic and molecular diagnostic testing reaching $500 million in 2010 for their members. In that same paper, physicians predicted another 14 percent of their patients will have genetic testing within the next five years.

The EEOC reports that cases claiming discriminatory practices under GINA rose from 201 in 2010 to 245 in 2011, with settlements increasing 600% in that same time. One of the most notable cases initiated under GINA involved an employee, Pamela Fink, who had disclosed the results of her genetic testing and was thereafter terminated. Her case, since settled out of court, was one of the first to bring GINA to the courts.

In part, GINA is an information mining and management issue. The Act prohibits employers from requesting, requiring or purchasing genetic information. That prohibition includes internet searches for specific information about an individual’s genetic information; “eavesdropping” on personal conversations about specific genetic testing results; or requesting medical background information that likely would uncover genetic information.

Even before the federal government passed GINA, many states enacted laws against genetic discrimination. GINA does not negate those state laws, but serves only as a minimum standard of protection that all state laws must meet.

Federal law requires employers to post GINA as part of the “Equal Employment Opportunity is the Law” posting. GovDocs offers a convenient all-one-one laminated federal poster to keep employers compliant.