William T. Wilson, Esquire

A new federal statute has defined an additional type of prohibited discrimination: the Genetic Information Nondiscrimination Act. The Act, which was passed with bipartisan support and was signed by the President, went into effect immediately. The first section of the Act, called Title I, amends a number of other preexisting federal laws. The second section, unsurprisingly called Title II, borrows many of the definitions from Title VII of the 1964 Civil Rights Act, but creates a new type of prohibited discrimination.

The amended statutes are the Employee Retirement Income Security Act (ERISA), the Public Health Service Act, the Internal Revenue Code, the Health Insurance Portability and Accountability Act (HIPAA), and the Social Security Act. The remainder of the new statute creates a new category of unlawful employment discrimination, but all of it's provisions essentially invalidate actions by employers, insurers or service providers based on similar unlawful criteria. The forbidden criteria of "genetic information," includes genetic testing, and the manifestations of disease or disorder in family members. Genetic tests are analyses of DNA, RNA, chromosomes, proteins or metabolites that detect genotypes, mutations or chromosomal changes, or analyses of proteins or metabolites that are directly related to a manifested disease, disorder, or pathological condition that could reasonably be detected by an appropriately trained health care professional. It does not include information about age or sex.

The Act also makes it unlawful for employers to even collect genetic information unless it is inadvertent. Situations that can be considered inadvertent include:

• if it is part of a wellness program, with the employee's written consent, which is available only to a very limited number of recipients and for the purposes of the wellness program
• if the employer requests the information in order to comply with the Family and Medical Leave Act
  
• if it is needed for monitoring the effects of toxins in the workplace, with restrictions
  
• if DNA is collected for law enforcement purposes

Discrimination should be discouraged by this limited availability of the information needed to discriminate, but the exceptions and the bad faith of some employers will lead to some violations.

Some of the conduct that will violate the Genetic Information Nondiscrimination Act may not have become widespread, since the technology that will allow useful analysis of genetic information is still developing. To this extent, the Act represents an effort by the legislature to address an issue early, and before the development of a long history of abuse. Without that history, it is quite difficult to predict its impact, but statutes can be amended, and it is much more likely that Congress will address a perceived loophole in an already existing statute than pass a new one, so the Act clearly advances the ball in terms of the employee rights.

One area that may see immediate applications in court comes from the inclusion of "manifestation of disease or disorder in family members" of the employee. Currently, the Americans With Disabilities Act forbids discrimination based on the disability of close family members, but the definition of disability requires substantial limitations of major life activities, and this can be a difficult thing to prove. The definition of genetic information is not so stringent. Employers who are tempted to eliminate employees because illness in their family threatens to impose a cost on benefit plans should take heed.

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