On May 21, 2008, President George W. Bush signed into law the Genetic Information Nondiscrimination Act of 2008 (“GINA”), 42 U.S.C. § 2000ff, et seq.  GINA was intended to and will undoubtedly have a significant impact on insurance law.  In addition, a portion of the GINA will impact employers in far reaching ways.  As recently stated by the E.E.O.C.:  “Congress enacted Title II of GINA to protect job applicants, current and former employees, labor union members and apprentices and trainees from discrimination based on their genetic information.”  The portion of GINA applicable to employment practices became effective on November 21, 2009.

In September of 2010, we were retained to defend an employment discrimination lawsuit filed by a former employee of one of our clients.  One of the allegations in the lawsuit was that the employer violated GINA when it terminated the employee.  After the lawsuit was filed, the question was posed, “What about this GINA claim?”  At the time the question was posed, there were no reported (or unreported) cases construing the employment provisions of GINA and the E.E.O.C. had not issued any rules or regulations under GINA.  (An early case containing allegations under GINA had been dismissed – not on the merits of the plaintiff’s claim – but because the unrepresented plaintiff could not identify the elements of any cause of action, explain how she was entitled to relief and, more importantly, failed to set forth sufficient factual allegations to state a facially plausible claim.  See Benoit v. Pennsylvania Bd. of Probation and Parole-West Div., No. 09-4047, 2010 WL 481021 at *2 (E.D.Pa. February 09, 2010).)

So, at that time it was posed, the client’s question (“What about this GINA claim?”) was answered based on a review of the E.E.O.C.’s proposed rules and regulations, learned scholars’ writings on the anticipated interpretation to be applied to GINA and other publicly available documents.  Fortunately, as it turns out, our client was not the legal “guinea pig” – the employer whose actions would be criticized and analyzed and forever remembered as shaping the soon-to-be developed body of law under GINA – as we were able to get the case dismissed with prejudice due to the plaintiff’s failure to sue the correct legal entity. 

Other employers need to know, however, that the EEOC has issued its final Regulations Under the Genetic Information Nondiscrimination Act of 2008 (effective January 10, 2011).  In addition, in only the first year of enforcement, the E.E.O.C. received 201 Charges of Discrimination containing GINA claims.  (
http://www.eeoc.gov/eeoc/plan/upload/2012budget.pdf
, p. 18)  While the EEOC described the number of first year filings as “low,” the E.E.O.C. further anticipates “that as more individuals become aware of [the] expanded rights and protections, we will continue to see an increasing number of GINA charge filings.”  (Id., p. 14.)

And, finally, very slowly we are finding that court opinions are being issued and the parameters of GINA claims are being shaped.  For example, on December 14, 2010, the United States District Court for the Middle District of North Carolina issued an opinion discussing some of the record keeping provisions of GINA.  See E.E.O.C. v. City of Greensboro, No. 09CV576, 2010 WL 5169080 (M.D.N.C.).  Most recently, the United States District Court for the Southern District of Florida dismissed the complaint of an unrepresented plaintiff finding, with respect to the plaintiff’s GINA claims, that the plaintiff failed to allege that the employer:  (1) required him “to take a genetic test;” (2) obtained the plaintiff’s genetic information; or (3) had specific genetic information about the plaintiff that led the employer to deny the plaintiff employment. That Court also correctly noted that any alleged GINA violations taking place prior to November 21, 2009 were not be actionable.  See Citron v. Niche Media/Ocean Drive Magazine, No. 10-24014-CIV, 2011 WL 381939 (S.D.Fla. Feb. 2, 2011).

Watch for future installments of GableGotwals Employment Law Update for topics such as the conduct prohibited by GINA and the record keeping requirements of GINA