Privacy & Information Security Law Blog

As reported in the Hunton Employment & Labor Perspectives Blog:

California Governor Jerry Brown recently signed into law Senate Bill No. 559 (SB 559), which prohibits discrimination based on an individual’s genetic information. While SB 559 significantly expands the protections from genetic discrimination provided under the federal Genetic Information Nondiscrimination Act of 2008 (GINA), at this time, its impact on most California employers is thought to be limited to the potential for greater damages to be awarded under it than under its federal counterpart.

What This Means for California Employers

GINA already prohibits discrimination on the basis of genetic information in the areas of employment and health insurance. Title II of GINA, which governs employers, prohibits the use of genetic information in hiring, termination, or making decisions related to compensation, terms, conditions, or privileges of employment. Title II also restricts employers from requesting, requiring, or purchasing genetic information, with certain limited exceptions, and limits the disclosure of genetic information. (A detailed discussion of the U.S. Equal Employment Opportunity Commission’s final regulations interpreting Title II of GINA can be found here.) However, GINA’s scope is limited to employers who employ 15 or more employees.

SB 559 extends the prohibition on discrimination based on genetic information to employers employing five or more persons. SB 559 also expands on the protections available under the federal law by prohibiting discrimination based on genetic information in the additional areas of housing, mortgage lending, public accommodations, emergency medical services, licensing exams, and programs administered or funded by the state. In the employment context, SB 559 amends the California Fair Employment and Housing Act (FEHA), which already protects the right and opportunity of all persons to seek, obtain and hold employment without discrimination on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, to also include genetic information as a prohibited basis for discrimination.

FEHA’s definition of “genetic information,” as amended by SB 559, mirrors the definition set forth in GINA, defining “genetic information,” with respect to any individual, as (1) the individual’s genetic tests; (2) the genetic tests of the individual’s family members; and (3) the manifestation of a disease or disorder in family members of the individual. “Genetic information,” as defined under both the state and federal law, also includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or family member of the individual. Both laws, however, exclude from the definition information about an individual’s sex or age, which are already protected classes under state and federal civil rights laws.

Of particular importance to California employers is the greater potential for damages that potentially can be assessed for violations of SB 559 than for violations of GINA. The same remedies available under Title VII of the Civil Rights Act of 1964 are available under Title II of GINA, and Title VII’s cap on combined compensatory and punitive damages (excluding back pay and front pay) also applies to actions under Title II of GINA. This cap ranges from $50,000 to $300,000, depending on the size of the employer. In contrast, an employee who brings a civil action against her employer for genetic discrimination under FEHA faces no statutory limit on the amount of compensatory or punitive damages she may obtain.

Steps Employers Should Consider to Ensure Compliance with California and Federal Laws Prohibiting Genetic Discrimination

California employers should consider taking the below steps to ensure compliance with SB 559 and GINA:

• Update company policies to include genetic information as a prohibited basis for discrimination, harassment, and retaliation;
• Train supervisors, human resources, and other hiring personnel regarding GINA and SB 559 compliance;
• Conduct an audit of any voluntary wellness programs to ensure that their policies with respect to genetic information comply with GINA;
• Revise any form requests for medical information to include the “safe harbor” language provided in the GINA regulations warning employees and health care providers not to provide genetic information in response to requests for medical information;
• Remove any genetic information from personnel files and place it in confidential medical files; and
• Post the most recent version of the “Equal Employment Opportunity Is The Law” poster, which reflects information about GINA.