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REVIEW OF CASES UNDER THE GENETIC BIAS LAW

The Genetic Information Non-Discrimination Act (GINA) has been around since 2008, and is one of the many federal anti-discrimination laws.  It is most notable in that more than 10 years the law has been in effect, there has not been a single successful lawsuit alleging discrimination by an employer using genetic information.  Only 12 GINA cases have been filed by the EEOC in its history.

Some say this lack of successful litigation shows the success, not the failure, of this federal law.  That is, it is likely to have worked effectively as a type of privacy law.  The law makes it illegal for employers to access employees' private genetic information, in both health insurance and employment.  As applied to employment, Title II of the law specifically outlaws businesses from requesting or obtaining a worker's genetic test results, the genetic test results of a worker's family members, or a worker's family medical history.  While workers can voluntarily turn over genetic information in the context of wellness plans, employers are still prohibited from taking adverse employment actions against the worker based on that information.  The cases that are brought under GINA generally relate to employers receiving workers' family medical histories.  The EEOC sued Dollar General Stores in 2017 in this situation, and another case involving FIS Management Services involved a worker claiming his employer fired him because of biometric test results, administered as part of a voluntary employee wellness program, which showed his elevated cancer risk.

Another reason GINA is rarely used, at least in successful litigation, is that already-existing medical conditions would fall under the Americans with Disabilities Act (ADA).  The ADA claims can be broader, partly because a plaintiff can sue whom is "regarded as" being disabled. 


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