Labor Pains: GINA's Turning 6, And She's Learned How to Sue!

One of your employees (we'll call her "Gina") seems depressed, so you ask her "Is everything okay?" Gina responds that she's doing fine, considering that her father has diabetes. Ready to provide compassion and support, you ask Gina about her father's prognosis, treatment, and whether diabetes runs in her family. The following week, the Equal Employment Opportunity Commission sues your company for "genetic discrimination," extracts a six-figure settlement, and brags about it on their website. Science fiction? No.

Unknown to many, in 2008, Congress created the Genetic Information Nondiscrimination Act (innocently referred to as "GINA"). At its core, GINA prohibits employers from requesting or requiring employees or job applicants to provide "genetic information." Because most employers do not conduct DNA testing on employees or applicants, they paid little attention to GINA. GINA, however, goes far beyond outlawing requests for employee DNA. It also – you know it's coming – prohibits employers from asking employees about their "family medical history."

It unfolds this way. GINA assumes that companies will terminate or deny employment to individuals with genetic predispositions to cancer, heart disease, or other medical conditions in order to reduce medical plan expenses or to avoid employee absenteeism. Because the possibility that someone may develop a disease in the future does not impact his current ability to perform a job, GINA prohibits companies from using an individual's propensity to contract a disease as a basis for making employment decisions. Because "family medical history" can influence whether someone has an increased risk of contracting a disease, asking an employee if cancer runs in her family is just like testing the employee's DNA to see if she has a genetic propensity to cancer. GINA prohibits both.

GINA also takes an expansive view of what it means for an employer to "request" an employee's family medical history. It includes conducting an Internet search on an individual in a way that might reveal family medical history (which...