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Genetic information discrimination and California workers

Employees in the state of California and across the country may not be aware that a federal law enacted in 2008 prohibits discrimination based on genetic information. Provisions of the Genetic Information Nondiscrimination Act specify when, where and how an employer may legitimately obtain genetic information, including family medical history, and under what circumstances that information may be used. Title II of GINA, which governs use of genetic information in employment settings, is enforced by the EEOC.

Among the specific prohibitions contained in the legislation is one against unfair treatment of employees based on genetic information. This generally include racial and ethnic characteristics, family medical history or the results of personal genetic testing. One of the few exceptions is that an employer may request family medical history for purposes of establishing whether FMLA leave is appropriate. However, such information must be treated as confidential and not used for any other employment-related purpose.

In occupations where such testing is permitted, GINA rigidly restricts how, by whom and in what capacity the resulting information may be utilized. Under no circumstances may genetic information be used to determine whether a job applicant or employee should be hired, dismissed, promoted, assigned or laid off, because it is considered to have no bearing on an employee's capability to perform the essential functions of the position for which the employee is being considered.

When an attorney reviews a workplace discrimination case on behalf of an aggrieved employee, a number of factors must be considered. California state law and federal nondiscrimination laws might be examined to determine the type of violation, as well as other factors that may help establish a pattern of discriminatory behavior on the part of the employer. With this information, the attorney may be able to determine the remedies that are available.

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