Preventing Workplace Harassment, Discrimination, and Retaliation

their family members. 48 Further, GINA prohibits retaliation against employees who oppose any act made unlawful by GINA, who file a charge of discrimination or assist another in doing so, or who provide testimony in connection with a charge. 49 GINA also prohibits employers from negatively limiting, segregating, or classifying employees because of their or their family members’ genetic information. 50 Finally, with limited exceptions, GINA also prohibits employers from requesting, requiring, or purchasing genetic information about employees or employees’ family members. 51 Although GINA prohibits employers from requesting, requiring, or purchasing genetic information about employees or employees’ family members, the following is a list of the six statutory exceptions to this general rule:  The employer inadvertently requests or requires family medical history of the employee or family member of the employee;  The employer collects such genetic information as a result of its offers of health or genetic services to the employee, e.g., information obtained as part of a bona fide wellness program, provided that certain confidentiality measures are followed to protect disclosure of that information and the employee provides prior voluntary written authorization;  The employer requests or requires family medical history from an employee to comply with the FMLA or the CFRA; In addition to proscribing the practices set forth above, GINA also seeks to enhance the confidentiality of the genetic information of employees. Specifically, GINA requires an employee’s genetic information to be maintained on separate forms and in separate medical files. 53 GINA further requires employers to treat these documents as confidential medical records, disclosure of which is only permitted in a few specific instances. 54 Since 2012, the FEHA and the Unruh Civil Rights Act also prohibit discrimination based on genetic information. 55 “Genetic information” is defined as: (1) the individual’s genetic tests; (2) the genetic tests of family members of the individual; and (3) the manifestation of a disease or disorder in family members of the individual. 56 Many genetic disorders are associated with particular racial, social, or ethnic groups. The law was amended to prevent the use of genetic information to stigmatize or unfairly discriminate against such groups. Although similar to GINA, FEHA and the Unruh Civil Rights Act now offer broader protections by prohibiting discrimination based on genetic information in the additional areas of housing, business services, emergency medical services, licensing  The employer purchases commercially and publicly available documents that contain family medical histories of its employees;  The employer seeks the information for genetic monitoring of the biological effects of toxic substances in the workplace; and  The employer conducts DNA analysis for law enforcement purposes. 52

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 15