Under Title II of the Genetic Information Nondiscrimination Act (GINA), it is illegal to discriminate against employees or applicants because of genetic information.  The law became effective on November 21, 2009.  Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.

The EEOC enforces Title II of GINA (dealing with genetic discrimination in employment). The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.

Definition of "Genetic Information"

Genetic information includes information about an individual's genetic tests and the genetic tests of an individual's family members, as well as information about any disease, disorder, or condition of an individual's family members (i.e. an individual's family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.

Discrimination Because of Genetic Information

The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information doesn't tell the employer anything about someone's current ability to work.

Harassment Because of Genetic Information

Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an applicant or employee's genetic information, or about the genetic information of a relative of the applicant or employee. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee, such as a client or customer.

Retaliation Because of Genetic Information Discrimination

Under GINA, it is illegal to fire, demote, harass, or otherwise "retaliate" against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination.

The US Supreme Court handed down some bad news for plaintiffs in age discrimination cases brought under the federal Age Discrimination in Employment Act (ADEA).  In a 5 to 4 decision, the Court held that a worker has to prove that age was the key factor in an employment decision even if there is some evidence that age played a role.  In discrimination cases brought under Title VII, the worker needs to establish that discrimination on the basis of for example national origin was a motivating factor.  There is a significant difference between proving discrimination was the key motivating factor versus a motivating factor and it makes the plaintiff's case more difficult to prove and win. For the plaintiff to now prove age discrimination, he or she must prove that "but for" age discrimination, the adverse employment action would not have occurred.  The case is Gross v. FBL financial Services and the majority opinion was authored by Justice Thomas. In his dissenting opinion, Justice Stevens commented that the but for standard was previously rejected by the Court and by Congress and that the Court misinterpreted the statute and has engaged in unnecessary lawmaking.  Unless and until Congress overrides the decision, plaintiffs pursuing federal age discrimination cases will have to deal with the but for causation standard.