Discrimination

Many representatives of employer groups and management lawyers remain uneasy about the potential effects of the newly enacted Genetic Information Nondiscrimination Act (GINA), which prohibits discrimination by employers or insurers based on an individual's genetic information and creates a new federal cause of action with the prospect of jury trials and damages.

Although employer representatives concurred that the final bill (H.R. 493) the president signed was an improvement over earlier versions of the legislation, in interviews earlier this month following congressional passage, most said they are troubled by the potential for jury trials and damages, the lack of federal preemption of more stringent state laws, and uncertainty about when an employer's acquisition of an individual's genetic information might render the employer vulnerable to discrimination claims.

The House originally passed its version of GINA by a 420-3 vote in April 2007 (80 DLR AA-1, 4/26/07) and the Senate passed an amended version of H.R. 493 last month (80 DLR AA-1, 4/25/08). On May 1, the House approved the Senate-amended H.R. 493 by a 414-1 vote (85 DLR AA-1, 5/2/08) and sent it to President Bush, who May 21 signed the bill as promised (see related article in this report).

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Michael Eastman, executive director of labor law policy for the U.S. Chamber of Commerce, told BNA the chamber is worried the act's provisions regarding an employer's acquisition of genetic information leave open the prospect of liability when an employer did not solicit or intend to obtain such data. For example, Eastman said, an employer could learn through an employee's leave request that the worker's mother has breast cancer, which would be genetic information under the act. Although the act specifically exempts employers who obtain such information under Family and Medical Leave Act processes, Eastman said that exemption apparently would not cover other sick leave forms or conversations in which a manager learns of the employee's parent's disease.

Burton Fishman, a lawyer with Fortney & Scott in Washington, D.C., who advised an employer coalition on GINA, said the act's FMLA exception does not extend to predictable disclosures of employee genetic information under other federal laws. For example, he said, an employer engaging in the interactive process required by the Americans with Disabilities Act for accommodating a disabled employee could acquire genetic information covered by GINA even though the employer lacked any intent to do so.

Increased Litigation Predicted.

GINA does provide that an employer's “inadvertent” acquisition of genetic information would not expose an employer to potential liability but Eastman and Fishman both questioned whether that is sufficient protection. There is “considerable confusion” among employers about the scope of the exception for “inadvertent” collection, Fishman said. For example, a manager who visits a sick employee in the hospital and learns the employee's malady has a genetic basis would not have obtained that information inadvertently, he noted.

Although management representatives interviewed by BNA said they were not aware of any litigation under more than 30 state laws that already prohibit discrimination based on genetic data, Fishman said employers are concerned that in GINA's employment title, Congress provided a private right of action, with jury trials and compensatory and punitive damages patterned after Title VII of the 1964 Civil Rights Act.

Fishman said he is “unaware of any private right of action that has been created” that has not led to increased litigation. He added, however, that it is “conceivable” that employers' experience under GINA will “replicate” that of the states, with few discrimination cases actually being filed or tried.

Lack of Uniform Standard Decried.

Lawrence Lorber, a management lawyer with Proskauer Rose in Washington, D.C., who testified before Congress on GINA for the Chamber of Commerce, suggested the new law remains a “solution in search of a problem.” Lorber and other management representatives said they did not know of any employers that were conducting genetic testing of their workforce or were interested in obtaining employees' genetic data. Lorber questioned whether given the scarcity of documented cases of genetic bias, Congress should have adopted the Title VII model, with the prospect of expensive and time-consuming trials and damages.

Lorber also lamented that GINA leaves undisturbed state laws that are more protective of individuals. “If this is a national issue, it's better to have a national standard” rather than varying state laws complicating compliance for employers who do business in several states, Lorber said.

However, Sharon Terry, president of the Genetic Alliance in Washington, D.C., said GINA provides helpful solutions for a genuine problem. People were refusing to participate in clinical trials or to undergo increasingly available genetic tests because of fear that employers or health insurers would discriminate against them, Terry said. She said that although there have been tremendous scientific advances with the mapping of the human genome, the “on ramp” for genetic testing that could aid in treating disease has been “blocked” because of individuals' fear of discrimination.

Terry said her group has been contacted by “lots of people” over the past 13 years whose employment-based insurance had been dropped after they had undergone screening that indicated genetic risk for breast cancer, for example. She suggested the most significant effect of the lengthy debate on GINA and its predecessors is that Congress now is “somewhat literate” on genetic science and that employers' awareness has been raised as well. Terry chaired the Coalition for Genetic Fairness, a collection of science research organization, laboratories, workplace rights groups, and some employers that worked to pass GINA.

No Disparate Impact Claims.

Employers, unions, and employment agencies covered by GINA's employment title will find familiar enforcement and damages provisions, as most are drawn directly from Title VII, the Civil Rights Act of 1991, and other federal employment laws.

As under Title VII, individuals asserting employment 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 aggrieved party or issuing a right-to-sue letter that permits the individual to sue.

A prevailing plaintiff may recover the damages set out in the Civil Rights Act of 1991, which provides for jury trials 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. Plaintiffs 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.

Recovery of attorneys' fees for prevailing parties under GINA is governed by 42 U.S.C. § 1988, the general fee-shifting statute for federal civil rights claims. The procedures for federal employees' claims are those set out in Title VII, while legislative branch employees with genetic bias claims will proceed under the framework set out in the Congressional Accountability Act of 1995. GINA also covers state employees, who would follow procedures set out in the Government Employee Rights Act of 1991.

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.

EEOC Rule Within a Year.

GINA's employment title takes effect 18 months after enactment and the act requires EEOC to issue final regulations within a year of enactment. Since the 1990s, EEOC has taken the position 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. EEOC's view has never been tested in court but EEOC reached a $2.2 million settlement of an ADA case against Burlington Northern based on that company's alleged demand that employees undergo genetic testing (90 DLR A-1, 5/9/02).

GINA's enactment will provide a “much cleaner claim” for genetic bias than those pursued under the ADA, an EEOC official told BNA. The official added that EEOC “absolutely” will consult with other federal agencies affected by GINA, including the Department of Health and Human Services, as it develops regulations.

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Asked what he would like to see EEOC cover in its rulemaking, Lorber of Proskauer Rose said GINA's language is “pretty straightforward” but that EEOC should address how the new law “dovetails” with the ADA and existing HHS privacy regulations under the Health Insurance Portability and Accountability Act. Eastman of the Chamber said he hopes EEOC clarifies the issues surrounding an employer's “inadvertent” acquisition of genetic information.

Michael Aitken, director of governmental affairs for the Society for Human Resource Management in Alexandria, Va., said EEOC should address some muddy issues including the interplay between GINA and state law, the act's “firewall” provision that aims to prevent employers from being sued as insurers and vice versa, and the exception for “inadvertent” possession of genetic information.

Sheryl Willert, a management lawyer with Kastner Williams in Seattle, said some of the concerns expressed about GINA might be overblown. Citing the lack of claims under existing state laws, she suggested GINA is “not going to have the kind of impact” that some management representatives are warning about.

Willert said that in her experience representing private and public employers, none has been involved with genetic testing or genetic information. “Frankly, it's not the usual employer” that is interested in such matters, she said. Although a new federal cause of action for discrimination “is always an opportunity for a creative lawyer,” Willert said, “I don't see this as a momentous piece of legislation.”

Potential Trap for Employers?

Section 206(b) of the act, dealing with disclosure of genetic information, “creates a potential trap for unwary employers,” said lawyer Philip Gordon of Littler Mendelson in Denver. He explained the section “permits disclosure of genetic information in only very limited circumstances, which do not include responding to a subpoena or a civil discovery request.”

That could potentially cause problems for employers, Gordon said, because “employment litigators, particularly on the defense side, commonly subpoena personnel files, including all medical information--for example, to test a plaintiff's allegations that the current employer's alleged actions caused emotional distress.” An employer that inadvertently produces “genetic information” in response to such a subpoena would violate GINA because the act “does not require a knowing disclosure to support a claim,” Gordon said.

The potential for inadvertent disclosure is not far-fetched, Gordon said, because GINA's definition of “genetic information” includes “the manifestation of a disease or disorder in family members” of an employee. “Employers should strongly consider screening all medical information upon receipt to determine whether it might fall within the definition of 'genetic information' and, if so, to file that information separately from all other medical information with a note that the information should not be produced except in response to a court order,” he said.

GINA represents a “win for privacy advocates” but the “flip side” is that the new federal cause of action opens a “Pandora's box” for employers, said Rebecca Springer of Crowell & Moring in Washington, D.C. The act is broadly written and creates an opportunity for an employee who has told his employer of a family history of alcoholism, for example, to claim genetic bias if he is subsequently fired, Springer observed.

“This is a bill that seems very commonsense,” said Christine Lyon of Morrison & Foerster in Palo Alto, Calif. “The question is how it plays out in practice.” Like Gordon, Lyon cited Section 201(4)(A) of the act, which defines an individual's “genetic information” to include data about an individual's own genetic tests, the genetic tests of family members, and “the manifestation of a disease or disorder in family members of such individual.”

An individual who tells an employer she needs time off to care for a parent with cancer, for example, could fall within the family member “manifestation” language, Lyon said. Employers should check to see if they fit within an exception to GINA's restrictions on obtaining genetic information or “look at their practices to see where they might currently be collecting [genetic] information,” she added.

By Kevin P. McGowan

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Barbara Yuill contributed to this report.

Copyright 2008, The Bureau of National Affairs, Inc.