Huntington’s disease is a genetically inherited neurological disorder characterized by a programmed degeneration of brain cells. In addition to causing uncontrolled movements, the disease leads to a progressive destruction of physical and intellectual abilities. Huntington’s disease also brings with it a collection of other difficulties, including cognitive problems, personality changes, and depression so severe that as many as one quarter of those afflicted attempt suicide. Currently, there is no cure for Huntington’s disease.

A child of a parent with Huntington’s disease has a 50-50 chance (a coin toss) of inheriting the gene that causes the disease, and all who inherit the gene will eventually develop it. Symptoms usually emerge when individuals carrying the gene are in their 30s or 40s, with death often occurring 10 to 25 years thereafter.

In 1993, a group of scientists identified the genetic mutation that causes Huntington’s disease. Today, a relatively simple genetic test can determine whether or not someone is a carrier of the abnormal Huntington gene, sometimes decades before the individual becomes symptomatic.

Despite the relative ease with which one can learn his or her fate, many at-risk individuals choose not to get tested, citing among other reasons the fact that there is no known way to prevent the disease or even slow its progression. However, what if an employer thinks it prudent to submit a young, apparently healthy recent college graduate to a genetic test for Huntington’s prior to extending a job offer?

Such a course of action would presumably be deemed illegal under Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination on the basis of genetic information¹.

In an uncharacteristically proactive move, Congress found that “advances in genetics open major new opportunities for medical progress...that will allow for earlier detection of illnesses, often before symptoms have begun.” Unfortunately, Congress noted, “these advances give rise to the potential misuse of genetic information to discriminate in...employment.” Thus, “Congress clearly has a compelling public interest in relieving the fear of discrimination and in prohibiting its actual practice in employment.”

A week after passing the Senate by a vote of 95-0, on May 1, 2008, the U.S. House of Representatives passed GINA by a vote of 414-1. On May 21, 2008, President Bush signed GINA into law.

GINA generally makes it unlawful for an “employer” to discriminate on the basis of genetic information. Borrowing the definition directly from Title VII of the Civil Rights Act (Title VII), GINA defines “employer” to mean a person or entity that is engaged in an industry affecting commerce that has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. GINA’s definitions for “employee,” “employment agency,” and “labor organization” are taken verbatim from Title VII as well.

The practical implication of using identical definitions is that organizations currently covered by Title VII should similarly be covered by GINA. An additional benefit to borrowing definitions is that the vast body of law interpreting Title VII should similarly apply to GINA in this regard.

In the context of employment discrimination, GINA specifically makes it an unlawful employment practice for an employer:

1. to fail or refuse to hire, or to discharge, any employee [or applicant], or otherwise discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or
2. to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.

Subject to exceptions, GINA additionally makes it unlawful for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee. GINA contains similar prohibitions against discrimination on the basis of genetic information that apply to employment agencies, labor organizations, and training programs.

The term “genetic information,” with respect to any individual, means information about (i) such individual’s genetic tests, (ii) the genetic tests of family members of such individual, and (iii) the manifestation of a disease or disorder in family members of such individual. Genetic information does not include information about the sex or age of any individual. GINA also requires that such genetic information possessed by an employer, employment agency, labor organization, or joint labor-management committee be maintained confidentially.

GINA essentially serves to place discrimination on the basis of genetic information on par with discrimination on the basis of race, color, religion, sex, national origin, or age. In fact, the Equal Employment Opportunity Commission (EEOC), which enforces the anti-discrimination provisions of Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, has been charged with enforcing GINA also.

The similarity in application between GINA and other antidiscrimination laws is further evidenced by the fact that GINA essentially adopts the enforcement provisions, including available remedies for violations, from Title VII. GINA also contains familiar prohibitions against retaliation.

Interestingly, however, the possibility of maintaining a cause of action for disparate impact discrimination (i.e., facially neutral practices or policies that have a disproportionately adverse effect on a protected group) is expressly foreclosed by GINA. However, GINA does leave open the possibility that such claims may be permitted in the future.

GINA’s employment discrimination provisions do not become effective until 18 months after the date of enactment. Additionally, although they are due within one year of GINA’s enactment, the EEOC has yet to promulgate any regulations interpreting GINA. Accordingly, at this early stage, it is very difficult to predict the precise scope and applicability of GINA. Nevertheless, in addition to keeping an eye out for any new developments, employers who will ultimately be covered by GINA should begin making plans for compliance before it is too late.