The popularity of DNA testing for ancestry has increased in recent years. However, it is important to ensure that this information is not misused to create an unlawful work environment. If you have experienced such discrimination, Helmer Friedman LLP’s Genetic Information Discrimination Lawyers can assist you. The law protects employees and job applicants from discrimination based on genetic information, which includes being denied employment, demoted, terminated, denied promotion, reduction in salary, refusal of job training, and any other employment-related terms or benefits.

What is Genetic Information?

Genetic information means:

• Information about an individual’s genetic tests;
• Information about the genetic test of a family member;
• Family medical history;
• Requests for and receipt of genetic services by an individual or a family member; and
• Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.

Procurement of Genetic Information

GINA (Genetic Information Nondiscrimination Act) prohibits employers from asking, requiring, or buying genetic information from job applicants or employees, except in particular circumstances. It is illegal for employers to ask about family medical history during medical exams related to employment, such as pre-employment or fitness-for-duty exams.

There are only six limited circumstances under which an employer may request, require, or purchase genetic information, which are as follows:

• Information acquired inadvertently, in other words, accidentally;
• Information obtained through a health or genetic service, such as a wellness program, that is provided by the employer on a voluntary basis;
• Family medical history, which is only to be used to comply with the certification requirements of the Family and Medical Leave Act, state or local leave laws, or certain employer leave policies;
• Information from sources that are commercially and publicly available, including newspapers, books, magazines, and electronic sources (such as websites accessible to the public);
• Genetic monitoring that is either required by law or provided on a voluntary basis; and
• Employers who conduct DNA testing for law enforcement purposes as a forensic lab or for human remains identification.

Confidentiality of Genetic Information

Genetic information about applicants and employees must be kept confidential by employers. If the information is in writing, it should be kept in separate medical files and apart from other personnel information. There are only six limited circumstances under which an employer may disclose genetic information. These include:

• Providing the information to the employee or family member upon receipt of a written request from them.
• Disclosing the information to an occupational or other health researcher who is conducting research in compliance with certain federal regulations.
• Disclosing the information in response to a court order, but only the genetic information specifically authorized by the order can be disclosed.
• Providing the information to government officials who are investigating compliance with Title II of GINA, but only if the information is relevant to the investigation.
• Disclosing the information in accordance with the certification process for FMLA leave or state family and medical leave laws.
• Providing the information to a public health agency, but only with regard to the manifestation of a disease or disorder that concerns a contagious disease presenting an imminent hazard of death or life-threatening illness.

Retaliation and Harassment

It is illegal to discriminate against someone or retaliate against them for protesting employment practices that discriminate based on genetic information or for filing a discrimination complaint. Harassment based on genetic information is also illegal. This includes making derogatory comments about someone’s genetic information, which can create a hostile work environment. For example, an employer cannot punish an employee by transferring them to a lower position for objecting to the employer’s attempt to obtain genetic information during a fitness-for-duty examination. A recent instance of genetic information harassment is a case involving a printing distribution company, which is facing charges of discrimination after a supervisor allegedly harassed an employee using derogatory slurs like “ape” and “Congo” when the supervisor learned about the employee’s DNA ancestry results.  If you, a friend, or a relative, has experienced genetic information discrimination, harassment, or retaliation, Helmer Friedman LLP’s Genetic Information Discrimination Lawyers in Los Angeles are here to help.