Discrimination and Retaliation on the Basis of Genetic Information

The federal Genetic Information Nondiscrimination Act (“GINA”)—and in Illinois, the Genetic Information Privacy Act (“GIPA”), 401 Ill. Comp. Stat. § 513—protect individuals from employment discrimination related to their genetic information.

Congress passed GINA to prevent the misuse of genetic information. Genetic information can reveal many actual and potential characteristics of an individual’s long-term health, and Congress recognized the inherent risk that employers may use such information in order to determine the conditions of individuals’ employment. Genetic information includes an individual’s own genetic information, as well as the individual’s family information and medical history.

In general, employers must have at least fifteen employees to be liable under GINA. However, GIPA, which otherwise mirrors GINA, applies to all employers.

Under GINA and GIPA, an employer may not use genetic information to make an employment decision or harass any employee. Additionally, GINA and GIPA forbid retaliation against an individual who complains of genetic discrimination. The laws also protect an employee’s privacy and make it unlawful for an employer to access genetic information except under certain circumstances. An employer may not force employees to submit to genetic testing or disclose genetic information. However, an employer may legitimately learn of such information through, for example, inadvertent disclosure, casual conversation, newspaper publications, or the employee’s voluntary participation in a wellness program. Likewise, an employer may gain knowledge of an employee’s genetic information when it is relevant to the employee’s work. Finally, an employer may potentially learn about an employee’s genetic information through other employment laws such as the Family Medical Leave Act – under which an employer may ask about the serious health condition of the employee or the family member whom the employee seeks leave to assist. Regardless of how an employer obtains an employee’s genetic information, the employer is bound by the law to keep the information strictly confidential.

In order to bring a civil claim under GINA, an individual must first file a charge with the Equal Employment Opportunities Commission (“EEOC”). Employees typically have 180 days to file a charge of a violation of GINA with the EEOC. However, under GIPA, an individual may proceed directly to court.

A successful GINA plaintiff can recover damages including back pay, compensatory damages, damages for emotional distress, and pain and suffering, and attorneys’ fees. As with Title VII, under GINA, both compensatory and punitive damages are statutorily capped based on the number of individuals employed by the employer. For employers with 15-100 employees, a plaintiff may be awarded no more than $50,000 in compensatory damages and no more than $50,000 in punitive damages for willful violations. For employees with 101-200 employees, the cap for each is $100,000. For employers with 201-500 employees, the cap is $200,000. For all other employers, the cap is $300,000 for each category of damages.

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If you have questions about your rights under GINA or GIPA, or feel that your employer has violated GINA or GIPA, contact Siegel & Dolan to speak to a Chicago employment lawyer.

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