The Genetic Information Nondiscrimination Act ("GINA") becomes effective in November 2009. Among other provisions, Title II of GINA, Prohibiting Employment Discrimination on the Basis of Genetic Information, will prohibit covered employers from firing, refusing to hire, or otherwise discriminating against individuals on the basis of their genetic information, and from discriminating against employees and applicants on the basis of a family member's genetic information. The United States Equal Employment Opportunity Commission will administer Title II of GINA.

Specifically, the employment provisions of GINA will prohibit covered employers (i.e., employers who are covered under Title VII of the Civil Rights Act) from requesting, requiring or purchasing genetic information of individuals or their family members except under specific circumstances, such as for genetic services offered by the employer and for purposes of complying with the Family and Medical Leave Act (FMLA). GINA also provides an exception for employers who inadvertently request or require the information. Notably, GINA will also permit employers to monitor the biological effects of toxic substances in the workplace if (1) the employer provides express written notice of the monitoring to the employee; (2) the employee provides written consent to the monitoring; (3) the monitoring is required by law; (4) the monitoring conforms to any federal or state law, including OSHA rules; and (5) the employer receives the results of the tests in cumulative terms.

As under Title VII, individuals asserting employment discrimination based on their genetic information will have to file a charge with the Equal Employment Opportunity Commission before proceeding to court. Prevailing plaintiffs may recover the damages provided by the Civil Rights Act of 1991, which also provides for jury trials in cases of intentional discrimination. As in cases under Title VII and the Americans with Disabilities Act, compensatory and punitive damages for genetic bias will be capped at $300,000 or lower, depending on the size of the defendant employer. Plaintiffs also may recover equitable relief, including front pay.

Several states have already adopted laws similar to GINA. Importantly, where state law is more stringent in the requirements, standards, or implementations than GINA, the state law will supersede the federal law. The Equal Employment Opportunity Commission is expected to issue final regulations on GINA by May 2009.

If you would like further information regarding GINA, please contact a member of the Schiff Hardin Labor and Employment group.