Employment- EEOC Assumes New Area of Jurisdiction to Protect Confidentiality of Genetic Information

According to a Press Release dated 11/20/09, in the first legislative expansion of its jurisdiction since the passage of the Americans with Disabilities Act (the “ADA”) in 1990, the U.S. Equal Employment Opportunity Commission (the “EEOC”) on Saturday, November 21, assumes responsibility for enforcing Title II of the Genetic Information Nondiscrimination Act (“GINA”).

The Press Release says that GINA, signed into law in May 2008, prohibits discrimination by health insurers and employers based on individuals’ genetic information. Genetic information includes the results of genetic tests to determine whether someone is at increased risk of acquiring a condition (such as some forms of breast cancer) in the future, as well as an individual’s family medical history. More specifically, GINA prohibits the use of genetic information in making employment decisions, restricts the acquisition of genetic information by employers and others, imposes strict confidentiality requirements, and prohibits retaliation against individuals who oppose actions made unlawful by GINA or who participate in proceedings to vindicate rights under the law or aid others in doing so. The same remedies, including compensatory and punitive damages, are available under Title II of GINA as are available under Title VII of the Civil Rights Act and the ADA.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination, and is charged with issuing regulations implementing Title II of GINA. On March 2, 2009, the EEOC published proposed regulations under Title II. The final regulations under Title II are still under review.