In 2008 the Genetic Information Nondiscrimination Act (GINA) was passed. Earlier this year the EEOC issued proposed regulations interpreting GINA and those regulations are expected to be finalized this month. GINA generally prohibits employers from possessing and using genetic information about individuals or from making employment decisions using that information, with several limited exceptions. A number of other commentators have provided a great deal of thoughtful analysis about GINA and its proposed regulations. The Employer Law Report, Connecticut Employment Law Blog and the Ohio Employer’s Law Blog all have useful information on GINA.
In thinking about GINA’s likely impact, I question whether it will have a significant effect on Texas employment practices. First, the type of information protected by GINA is not the kind of information typically used or gathered by employers. With the exception of employers who use healthcare providers to conduct business-related, post-offer of employment physicals, it is difficult to imagine a systemic employment practice an employer might engage in that would run afoul of GINA. For those business-related, post-offer of employment physicals, employers can avoid violating GINA by instructing the healthcare provider to either take no family medical history from the individual or make sure it does not pass that information on to the employer.
Second, Texas has prohibited discrimination in employment on the basis of an individual’s genetic information or refusal to submit to a genetic test since 1997. Like GINA, the Texas statute also requires that any person holding genetic information must keep it confidential with few exceptions. Although the law has been in effect for 12 years, there are no reported Texas state or federal opinions where an applicant or employee sued an employer alleging violation of the Texas statute.
At first blush GINA appears to be a solution looking for a problem. While I think GINA is an interesting statute –one which employers must pay attention to and comply with –it is unlikely to have a significant impact on the way employers operate on a day-to-day basis.