Genetic Information (Including Sickle Cell Trait) Discrimination At Work
Genetic Information Law
What is Genetic Information Employment Discrimination?
The right of employees to be free from genetic information discrimination is protected under the law, including the following enforced by the Equal Employment Opportunity Commission (EEOC):
The law against discrimination based on genetic information includes all aspects of employment. This includes hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual's current ability to work.
Retaliation
- It is unlawful to retaliate against an individual for opposing employment practices that discriminate based on genetic information or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under GINA.
- For example, it would be unlawful for an employer to transfer an employee to a less prestigious position after the employee complains of employer's attempt to acquire genetic information during a fitness for duty exam.
Harassment
- GINA prohibits harassment on the basis of genetic information.
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It is unlawful to harass a person based on Genetic Info and/or Sickle Cell trait.
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Harassment can include, for example, offensive or derogatory remarks about an individual's genetic information or sickle cell trait. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
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The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)
- What is Genetic information Discrimination Under Title II of GINA?
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), prohibits genetic information discrimination in employment. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts employers and other entities covered by Title II (employment agencies, labor organizations and joint labor-management training and apprenticeship programs - referred to as "covered entities") from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.
- The EEOC enforces Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) (dealing with genetic discrimination in employment). The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.
- An employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual's current ability to work.
- What is Genetic Information?
- Genetic information includes information about an individual's genetic tests and the genetic tests of an individual's family members, as well as information about the manifestation of a disease or disorder in an individual's family members (i.e. family medical history).
- Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.
- Genetic information also includes an individual's request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual, and the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.
- Rules Against Acquiring Genetic Information
It will usually be unlawful for a covered entity to get genetic information. There are six narrow exceptions to this prohibition:
- Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member's illness.
- Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met.
- Family medical history may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws or pursuant to an employer policy), where an employee is asking for leave to care for a family member with a serious health condition.
- Genetic information may be acquired through commercially and publicly available documents like newspapers, as long as the employer is not searching those sources with the intent of finding genetic information or accessing sources from which they are likely to acquire genetic information (such as websites and on-line discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination).
- Genetic information may be acquired through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.
- Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.
- Confidentiality of Genetic Information
It is also unlawful for a covered entity to disclose genetic information about applicants, employees, or members.
- Covered entities must keep genetic information confidential and in a separate medical file. (Genetic information may be kept in the same file as other medical information in compliance with ADA)
- There are limited exceptions to this non-disclosure rule, such as exceptions that provide for the disclosure of relevant genetic information to government officials investigating compliance with GINA and for disclosures made pursuant to a court order.
- Lawful Requests for Health-Related Information
- Because GINA prohibits employers from requesting, requiring, or purchasing genetic information about an individual, when an employer asks for information about an applicant's or employee's current health status (e.g., to support an employee's request for reasonable accommodation under the ADA or a request for sick leave), it should warn the employee and/or the employee's health care provider from whom it is requesting the information not to provide genetic information.
- An employer must tell its own health care providers not to collect genetic information as part of employment-related medical exams when it sends an applicant or employee for a medical examination.
State Law
LA State Law and Employment Discrimination Based on Genetic Information or Sickle Cell Trait
Louisiana Law, LA Rev Stat 23:332 prohibits intentional employment discrimination.
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Title 23 Labor and Workers Compensation - RS 23:332 Intentional Discrimination in Employment
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LA Rev. Stat. Sec. 23:332 includes age, disability, equal pay/equal compensation, national origin, race/color, religious, and sex-based employment discrimination.
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LA Rev Stat § 22:1023 State law explicitly prohibits discrimination against employees based on genetic information.
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LA Rev. Stat. § 23:352(D) State law explicitly prohibits discrimination against employees based on sickle-cell trait.
Retaliation claims for other types of discrimination complaints are not covered under the Louisiana Employment Discrimination Law. Under La. Rev. Stat. § 23:967 General Whistleblower Protection Law an employee may not be discharged (or discriminated against) in retaliation for performing, in good faith, the following activities:
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Disclosing (or threatening to disclose) a workplace act or practice that violates state law;
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Providing information or testimony in a public investigation, hearing, or inquiry into any violation of the law;
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Refusing to participate in (or objecting to) an illegal employment act;
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To be protected under this statute, the employee must first inform the employer of the violation. An employee is not protected if he goes directly to a governmental agency without first advising the employer. Also, an employee must be certain that the illegal conduct actually happened; a reasonable, good faith belief will not protect an employee if no violation actually occurred.
The general rule is that most employees may be fired at any time-for any reason or for no reason at all-under what is known as the at-will employment doctrine. However, there are exceptions to the general rule; the Louisiana whistleblower protection statute. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: health care employees, insurer employees, labor investigations & proceedings, and workers' compensation.
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
How to File a Charge
How to File a Charge
Laws like Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) require you to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) before you can file a discrimination lawsuit against your employer. An individual alleging a violation of GINA must file a charge with the EEOC before you can file a discrimination claim in federal court.
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To File an Equal Employment Opportunity Commission (EEOC):
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Within 180 days of the alleged unlawful compensation practice
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15 or more employees who have worked for the employer for at least twenty calendar weeks (in this year or last).
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To File with the Louisiana Commission on Human Rights (LCHR):
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Within 180 days of the alleged unlawful compensation practice
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20 or more employees who have worked for the employer for at least twenty calendar weeks (in this year or last)
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To File in a State Court under Louisiana State Law:
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You may file a claim under state law without having first gone to either the EEOC or LCHR.
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Generally, to preserve your claim under state law based on your state discrimination claims, you must file within 1-year or 360 days of the date you believe you were discriminated against.
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If you file your discrimination claim with the EEOC or LCHR within 300 days of the discriminatory treatment, then you have an additional 6-month extension from the 1-year period to file your claim in Louisiana state court (meaning you have 18 total months).
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A case filed in state court using federal law may be “removed” to federal court by the employer because it involves a federal statute such as Title VII, ADEA, ADA, GINA, and/or PDA because the employer is based in another state.
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To File a Discrimination Claim in Federal Court:
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To preserve your claim under federal law, you must cross-file with the EEOC or LCHR within 300 days of the date you believe you were discriminated against.
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A federal employment discrimination case cannot be filed in court without first going to the EEOC or LCHR, as discussed above, and having the EEOC or LCHR dismiss your claim.
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This process is called “exhaustion” of your administrative remedy. The EEOC or LCHR must first issue the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161) before you can file a case based upon your federal claim.
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A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. Be sure to mark down that date when you receive the notice.
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