New Federal Law Tackles Genetic Discrimination
A federal law passed on May 21, 2008 provides a starting point to address some of these concerns. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from using genetic information (including the results of genetic tests, a family member with the disease, or participation in research) to make employment decisions about the hiring, firing, promotion, and compensation of employees.
The law will provide some protections for people who have a genetic predisposition to diabetes. But because the legislation is new, it is not yet clear how the rules will play out in actual cases. There are also exceptions built into GINA that still allow employers to gather genetic information about individuals, so long as they do not discriminate against those individuals because they have a genetic predisposition to disease. Yet, it would be difficult to prove that an employer discriminated on the basis of that genetic information and not for some other reason. Even if an employee does prove discrimination, courts still may not award damages if the employer can show that it would have taken the same actions regardless of a discriminatory motive. Thus there may still be ways that employers can circumvent GINA’s provisions. And, while GINA provides some protections in the health insurance context, it does not apply to long-term care insurance, disability insurance, or life insurance providers.