On November 9, 2010, the Equal Employment Opportunity Commission (“EEOC”) issued its much-anticipated final rule implementing Title II of the Genetic Information Nondiscrimination Act (“GINA”), which applies to all employers covered by Title VII of the Civil Rights Act of 1964 (“Title VII”), namely, employers with fifteen or more employees, as well as unions, employment agencies and labor management training programs. This final rule is effective on January 10, 2011, and prohibits the use of genetic information in the employment context, restricts an employer’s deliberate acquisition of genetic information, requires employers to maintain employee genetic information as confidential, and strictly limits employers from disclosing genetic information.

Prohibition on Use of Genetic Information by Employers

According to GINA, an employer may not discriminate against an applicant, employee or former employee on the basis of genetic information in hiring, compensation, promotion or demotion, seniority, discipline, employment termination, or any other term, condition or privilege of employment. GINA also prohibits employers from limiting, segregating, or classifying employees based on genetic information and prohibits entities from causing an employer to discriminate based on genetic information.

What is Genetic Information?

Genetic information is defined broadly to include: 

• genetic tests of an individual or a family member; 
• the manifestation of a disease or disorder in an individual’s family medical history; 
• an individual’s request or receipt of genetic services; 
• participation in genetic clinical research by an individual or a family member; 
• the genetic information of a fetus carried by an individual or a pregnant family member; or 
• the genetic information of any embryo held by an individual or a family member using assisted reproductive technology.

Information about the sex or age of an individual or a family member, however, is specifically excluded from the definition of genetic information.

To read the full alert, follow the link to the Haynes and Boone website and click on the PDF linked at the bottom of the page. Topics include:

• Acquisition of Genetic Information Prohibited
• Remedies for GINA Violations 
• The Practical Effects of GINA

If you have any questions regarding GINA’s application and its newly-adopted final rule, please visit the Haynes and Boone Labor and Employment Practice page of our website or contact one of the attorneys listed below: