GINA, the Genetic Information Nondiscrimination Law of 2009, is the first new federal discrimination law in decades.
Although EEOC regulations are promised (the proposed regulations were published back in March 2009 and the comment period has been closed since May 2009) , they have yet to issue, leaving employers on their own to interpret this brand new statute.
One area which presents an interesting question is the role of social media in GINA. Unlike other discrimination laws, GINA makes illegal the mere acquisition of genetic information, which is defined broadly to include, among other things, information about manifested diseases of family members. There are many exceptions to this rule, including “commercially and publicly available information,” such as newspapers, magazines, periodicals, and books. The EEOC specifically invited public comment on whether “commercially and publicly available information” should include personal Web sites or social networking sites.
If these are NOT included within the exclusions, it would mean that if an employer reviews an applicant or employee’s Facebook or MySpace page, and learns genetic information in the process, it is in violation of GINA. Given GINA’s broad definition of “genetic information,” this could easily occur. For instance, discovering on Facebook that an employee marched in a Susan G. Komen Race for the Cure on behalf of her mother would reveal genetic information.
If this advertent act (review of Facebook, Google name search, etc.) inadvertently produced genetic information – the employer would still be on the hook unless social media is included within the “publicly available” exclusion. Therefore, if information obtained from social media is NOT considered to be “publicly available,” employers will have to reconsider how they conduct background checks, since even the most rudimentary background checks currently include a “Google” search and review of any online information it turns up.
Even if the regulations specify that social media is excluded from the acquisition portion of the statute, the thornier issue is what happens after an employer has this information, whether deemed advertent or inadvertent under the statute. As a result of GINA, any adverse employment action which occurs after an employer has such information may be suspect. Just like any other discrimination, timing and stray comments may each play a role in developing causation between the membership in a protected class and the adverse employment action. As discussed in my previous post, Pink Ribbons and Yellow Bracelets, “genetic information” is everywhere. It will be hard for employers NOT to learn this type of information about their employees.
Thus, employers and their managers must understand the significance once this type of information is learned by the employer. It does not mean that the employee has to be treated better than other employers. It does mean, however, that employers need to be on alert once genetic information is learned about an employee. Like any other protected class, employers need to be cognizant of suspicious timing and mindful that documentation regarding any legitimate performance issues is in order, before taking any adverse employment action.
Want to learn more about GINA and its implications for employers? There are many opportunities: I will be presenting on GINA at the CUPA/SHRM conference on March 2; in an audioconference on May 4, sponsored by M. Lee Smith; and at the Annual Seminar on Employment Law hosted by the Delaware State Bar Association on May 11. Stay tuned for more details on the audioconference and DSBA event.
Until then, learn more about GINA with these earlier posts:
And, for more about the impact of social media on the workplace: