Fighting Genetic Discrimination in the Workplace in New Jersey
Some individuals might be at a higher risk of certain medical conditions, such as heart disease, because of their genes and family history. Genetic testing has become more common and widely available, but unfortunately that has also increased the likelihood that an employer would fail to hire or promote an employee because of their real or imagined predisposition to illness or disease. Title II of the Genetic Information Nondiscrimination Act (GINA), as well as other federal and state laws, prohibits employers from discriminating against an employee or applicant because of their genetic information. “Genetic information” as defined under GINA includes:
- Information about the genetic tests of an employee or their family members
- Information about an employee’s family medical history, including manifestation of diseases or disorders.
- An employee’s request or receipt of genetic tests.
- Genetic information about the fetus of a pregnant employee, or pregnant family member of an employee.
In 2019, 209 complaints were filed with the EEOC for genetic discrimination charges with a total payout of $400,000. With offices in Red Bank, NJ, Marlton, NJ, and Newark, NJ, the genetic discrimination lawyers at McOmber McOmber & Luber, P.C. have a proven track record of successfully handling employment discrimination cases, recovering substantial damages for victims of all forms of discrimination.
Federal Protections under GINA
Under GINA, employers are not allowed to discriminate against employees or candidates on the basis of genetic information at any stage of employment, including:
- Position or Job Assignment
- Layoffs or Termination
As genetic information is irrelevant to an employee’s ability to work, employers are not allowed to use it when making any employment decision. They are also not allowed to segregate or classify employees according to genetic information.
Confidentiality of Genetic Information
Employers are not allowed to disclose any genetic information about applicants or employees. This information must be kept confidential in a separate medical file with any other medical information. There are few limited exceptions to this non-disclosure rule, including government investigations into GINA compliance or disclosures requested by a court order.
Rules Regarding Employer Acquisition of Genetic Information
It is illegal for employers and other restricted parties to access an employee’s genetic information, except in a few specific circumstances including:
- An employer inadvertently hearing about a family member’s illness.
- Genetic information obtained through a voluntary wellness program, in certain circumstances.
- Information obtained when an employee requests leave to take care of a sick family member.
- Information obtained through publicly available documents, such as newspapers. (Note that the employer is not supposed to be actively searching for such sources.)
- Information obtained through a genetic monitoring program, either voluntary or required by law, that tracks the effects of any toxic substances in the workplace.
- Information obtained by employers who do DNA testing for law enforcement purposes.
These situations are uncommon, and the rules are strict. If your employer has obtained genetic information and you are unsure whether it was for a legitimate reason, do not hesitate to contact us.
Genetic Discrimination Protections Under NJ State Law
While GINA is a federal law protecting individuals from genetic information discrimination, state and local laws offer additional protection to workers. The New Jersey Law Against Discrimination (NJLAD) makes it unlawful for an employer to discriminate against any individual based on their genetic information. Specifically, the NJLAD forbids employment discrimination based on “atypical hereditary cellular or blood trait of any individual,” or “the refusal to submit to a genetic test or make available the results of a genetic test to an employer.”
Before filing a genetic discrimination claim under NJLAD, it is important to speak to an attorney to discuss your case.
What is Considered Genetic Discrimination in New Jersey?
Genetic discrimination in the workplace can take many forms, and can occur between an employee and an employer, coworker, or client. For example, if an employer does not promote an employee based on fears that the extra workload will cause them stress and cause a heart attack because of their family history, they are committing genetic discrimination. Other common examples of this type of harassment include the following actions based on the employee’s real or perceived risk of medical conditions:
- Termination or Demotion
- Failure to Recruit or Hire
- Differential Treatment or Pay
- Withholding Training, Promotions or Career Advancement
- Being Subjected to Harassment or Increased Scrutiny
- Jokes, Slurs, or Stereotypes
- The Existence of a Hostile Work Environment with Severe and Pervasive Harassment
- Terminating or Disciplining an Employee in Retaliation for Making a Complaint
- Exclusion from Work Events Due to Genetic Information
Retaliation for Reporting Genetic Information Discrimination in the Workplace
Employees should not have to fear speaking out against discrimination. It is illegal for any employer to terminate, discipline, or otherwise retaliate against an employee who reports, complains, files a charge, or participates in an investigation regarding genetic discrimination. This applies to both internal and external claims. If you complained about harassment and were fired, denied privileges, or demoted as a result, you may be able to file a separate retaliation charge.
Experienced NJ Genetic Discrimination Lawyers Can Help You
If your employer requests any type of genetic information from you, asks you to take a DNA test, or asks inappropriate questions about your family’s medical history, they may be violating your rights under federal and state law. If you have experienced a hostile work environment or suffered genetic discrimination in the workplace, call our Red Bank, NJ, Marlton, NJ or Newark, NJ office or contact us today for a free consultation. We will discuss your rights and options, which may include internal complaints or a lawsuit, and help you every step of the way in seeking justice for unlawful workplace discrimination.