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GINA sleepy so far, but don’t get caught unaware

January 12th, 2011  |  Pamela Wolf

The Genetic Information Nondiscrimination Act (GINA) had a pretty quiet first year, according to the U.S. Equal Employment Opportunity Commission’s (EEOC) fiscal year (FY) 2010 enforcement and litigation statistics; nonetheless, this is a good time to review and update HR policies and procedures to ensure GINA-compliance.

The EEOC received only 201 charges of GINA violations during FY 2010, a mere 0.2 percent of the total charges received by the EEOC. None of these GINA charges was referred for litigation.

The new discrimination law took effect on November 21, 2009, some seven weeks into the EEOC’s new fiscal year, which begins on October 1, and ends on September 20, each year. The federal agency enforces Title II of GINA, which:

• prohibits the use of genetic information in making employment decisions;
• restricts employers and others from requesting, requiring or purchasing genetic information;
• requires that genetic information be maintained as a confidential medical record and strictly limits disclosure of genetic information; and
• provides remedies for individuals whose genetic information is acquired, used or disclosed in violation of GINA’s protections.

In contrast, the EEOC received 1,048 charges of Americans with Disabilities Act (ADA) violations during the agency’s first fiscal year enforcing that statute – ADA charges made up 1.4 percent of the total charges received in FY 1992. The EEOC’s enforcement efforts, which began on May 26, 1992, some four months prior to the end of agency’s fiscal year, netted approximately $200,000 in monetary benefits. The EEOC received 15,274 ADA charges during its first full year of that statute’s enforcement.

At the end of FY 2010, only 56 of the 201 GINA charges received by the agency had been resolved – leaving a pending inventory of 145 GINA charges at the beginning of FY 2011. The agency obtained approximately $80,000 in monetary benefits through the resolution of GINA charges during FY 2010. It will be interesting to see if this quiet trend continues.

GINA has always been a bit of a sleeper, perhaps because many employees and employers are unaware of the breadth of statute’s prohibitions. That may change, however – on November 9, 2010, the EEOC published its final rule implementing Title II of GINA, as well as documents providing background information and guidance to small employers. The final regulations and guidance documents provide the sort of detailed information and examples that bring GINA’s prohibitions to life.

Moreover, the EEOC is poised to publish proposed amendments updating its regulations to reflect GINA’s recordkeeping requirements – the agency expects to issue the proposed amendments this month.

With the beginning of the new year, it’s a good time for employers to conduct an HR policy review to ensure that solid GINA-compliance policies and procedures are in place – insurance that the sleepy trend will continue.