Good Reuters Piece on Recent EEOC GINA Activity

See this article, which begins:

The U.S. Equal Employment Opportunity Commission has signaled it will actively sue employers it suspects of misusing genetic information to discriminate in the workplace, filing its first class action using a 5-year-old law known as GINA just days after winning its first case. 

The EEOC said last week that it had filed a class action against Founders Pavilion Inc, a rehabilitation and nursing facility in Corning, New York, using the Genetic Information Nondiscrimination Act (GINA). 

Earlier this month, the commission announced it had obtained a $50,000 settlement for a worker from fabric distributor Fabricut in Tulsa, Oklahoma, in the first GINA case the commission brought after the law was passed in 2008.

Arehart on GINA

I keep thinking I've posted on this, but I don't think I have.  As a result, I'm a bit late to the game, but you should check out Bradley Arehart's article on SSRN (which is now out at 46 Ga. L. Rev. 705 (2012)), entitled GINA, Privacy, and Antisubordination.  The abstract:

This Essay briefly considers both the current and optimal role of privacy in employment discrimination jurisprudence. The recently passed Genetic Information Nondiscrimination Act (GINA) is illustrative of one way to value privacy through employment discrimination mandates. In particular, GINA includes a prohibition on the use of genetic information in all employment decisions, affording a measure of genetic privacy to potential and current employees. 

GINA stands in contrast to prior employment discrimination statutes, which have often encouraged or required employers to be knowledgeable of and consider particular identity traits through policies such as reasonable accommodation and affirmative action, and the disparate impact doctrine. There is thus a tension between privacy and effectuating certain employment discrimination policies that are directed toward antisubordination ends. After exploring the tension that sometimes exists between privacy and antisubordination, this Essay argues that, in the statutory areas of the Americans with Disabilities Act and GINA, foregoing privacy is often desirable in order to fight subordination by employees revealing, and employers considering, particular health traits and information.

Feldman on GINA

New on SSRN: Eric A. Feldman, The Genetic Information Nondiscrimination Act (GINA): Public Policy and Medical Practice in the Age of Personalized Medicine, J. General Internal Med. (forthcoming 2012).  The abstract:

Survey data suggest that many people fear genetic discrimination by health insurers or employers. In fact, such discrimination has not yet been a significant problem. This article examines the fear and reality of genetic discrimination in the United States, describes how Congress sought to prohibit such discrimination by passing the Genetic Information Nondiscrimination Act of 2008 (GINA), and explores the implications of GINA for general internists and their institutions. It concludes that medical providers and health care institutions must be familiar with the general intent and specific terms of GINA, and should continue to collect genetic information that can contribute to the high quality provision of medical treatment. Not doing so violates their medical mission and diminishes the quality of care patients deserve.

Perdue on GINA

Just out: Abigail Lauren Perdue, Justifying GINA, 78 Tenn. L. Rev. 1051 (2011).  From the introduction:

President George W. Bush provided the following justification for GINA during legislative debate regarding the Act:

Genetic discrimination is unfair to workers and their families. It is unjustified-among other reasons, because it involves little more than medical speculation. A genetic predisposition toward cancer or heart disease does not mean the condition will develop. To deny employment or insurance to a healthy person based only on a predisposition violates our country's belief in equal treatment and individual merit.

Something had to be done, but was Title II of GINA the best solution? 

This Article aims to answer that question by analyzing the new law and exploring the controversy surrounding its enactment. Section II provides a basic understanding of the genetic science at the heart of the GINA controversy and illustrates that, due to the exceptional nature of genetic information, genetic discrimination in employment is best addressed by genetic-specific legislation like GINA. Section III illustrates the existence of genetic discrimination in employment and demonstrates how the similarities between genetic discrimination, racism, and sexism support GINA's enactment. Section IV discusses how GINA strikes a balance between the competing interests regarding the use of genetic information and highlights countervailing employee concerns arising from the use of genetic testing in employment, such as worker autonomy and employees' fears of genetic stigmatization, medicalization, and discrimination. Finally, Section V suggests points to consider in future amendments to GINA and the promulgation or modification of GINA regulations.

Corbett on GINA

Just out: William R. Corbett, What is in GINA's Genes?  The Curious Case of the Mutant-Hybrid Employment Law, 64 Okla. L. Rev. 1 (2011).  From the introduction:

For all of its accolades, however, GINA also is a conundrum. It is the first employment discrimination statute passed without a history of discrimination against the protected class. Accordingly, one commentator labeled it “the first preemptive antidiscrimination statute in American history,” and further noted that it is “perhaps the first antidiscrimination statute passed without an associated identity group.” One might say that genetic testing of GINA has revealed it to be a mutant antidiscrimination statute, differing in significant ways from prior antidiscrimination laws. 

The discovery of such a mutation should be monumental. However, it has been argued that GINA, at least in practice, may turn out to be much ado about very little.  Genetic information employment discrimination was not a problem when GINA was passed, and it may never have become a problem even without the passage of GINA. With the new law, it seems very unlikely that a significant problem will emerge regarding genetic information discrimination. So, maybe this mutation is not so monumental. Perhaps it will fade almost unnoticed into the annals of antidiscrimination law. 

From a theoretical perspective, however, GINA is well worth considering as an aberrant antidiscrimination law, and reconsidering it as something other than just an antidiscrimination mutant. A law like none other before it may have significant theoretical implications. It may reveal something important about the current state of our employment laws, as well as the history, and perhaps the future. If GINA is such an exceptional law, how did it come to be enacted? Does its enactment suggest possible trends for the future of employment law? Ruminating about GINA may elucidate some truths about how employment law, politics, and societal values interact and provide some insight into future employment laws.

Waterstone on Genetic Discrimination in the US and Europe

Digging out from my Thanksgiving email, I find that FOB (Friend of the Blog) Michael Waterstone passes along this interesting blog post about his recent presentation at a conference in Ireland regarding genetic discrimination.  Read it!

Satz on GINA (and, Inter Alia, the ADA)

Ani Satz has this very interesting op-ed today in the Atlanta Journal-Constitution on the Genetic Information Nondiscrimination Act (which President Bush signed last week) and its interaction with other health laws and the ADA. It begins:

On Wednesday, President Bush signed the Genetic Information Nondiscrimination Act, affording genetic information special protections. A product of more than a decade of debate, this moment was bittersweet. GINA may harm many of the individuals it is designed to protect.

The act increases protections only for some medical information, privileging those with genetic conditions over those with nongenetic ones. This necessarily places greater pressure on insurers to use nongenetic medical information to segregate risk. Further, it creates unequal disability protections. GINA protects individuals with genetic conditions from health insurance and employment discrimination even if they have no symptoms of the condition. The Americans with Disabilities Act protects only individuals with symptoms in regard to employment, services and public accommodation.

GINA also creates the perception that genetic testing is unique and not basic health care. This may further limit already restricted coverage of such technologies under public and private health insurance. In addition, heightened protections for genetic testing may discourage insurers from covering such services out of fear that they will open themselves to increased risk of litigation for breaching patient privacy. Further, insurers and employers are likely to lose incentive to provide genetic testing when they are not allowed access to the results, as they are for other diagnostic tests.