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What is workplace discrimination based on genetic information?

As New York employees become more cognizant of employment law and how it protects them from certain types of workplace discrimination, employers must be similarly aware of the impact these issues can have on their business. A violation can cause extensive problems, lead to a lawsuit, and result in negative public attention. While many forms of discrimination are relatively self-explanatory, such as racial discrimination, gender discrimination and more, one issue that might not be as commonly understood is genetic discrimination.

A law regarding genetic discrimination - known as the Genetic Information Nondiscrimination Act of 2008 (GINA) - came into effect in 2009. Understanding this law is important not just for employees, but for employers, too, so that a reasonable defense can be crafted when there are accusations that this law was violated. Under the law, employees or applicants for a job cannot be discriminated against because of genetic information. If there are genetic tests of a person and his or her family members and there is information regarding a disorder or disease based on medical history, using that as a basis to not give a person a job or to dismiss them could lead to a charge of discrimination.

Employers are legally obligated to avoid discriminating based on genetic information. It is not deemed to be a relevant factor in the person's ability to work. Workers cannot be harassed because of genetic information. That includes offensive comments about the person or the person's relatives.

Employers should know that there are exceptions when they are acquiring genetic information, which can be critical to a defense when accused of a legal violation.

The following are exceptions to the law: the information is acquired inadvertently; it is acquired as part of a workplace wellness program and that program is voluntary; it is acquired as part of the certification process for the Family and Medical Leave Act (FMLA); it was acquired through publicly available documents; it was acquired via a program to monitor how toxic substances in the workplace impact workers; or it was acquired through DNA testing due to requirements in law enforcement and forensics.

There is a seemingly endless array of advertisements about tests to discover one's genetic information. Choosing to seek that information out is within one's rights. If an employer discovers a person's genetic information and uses that as a means of harassment or discrimination, though, legal action may follow. For employers who were accused of violating GINA, it is vital to have a strong defense supported by legal advocates who are skilled and experienced with employment law for employers.

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