"California has a compelling interest in promoting
and fostering the medical promise of genomics while relieving the fear of
discrimination by strengthening laws to prevent it." - California State
Sen. Alex Padilla
On September 6, 2011, California Gov. Jerry Brown signed
into law the California Genetic Information Nondiscrimination Act (CalGINA),
which will take effect on January 1, 2012. CalGINA amends anti-discrimination laws
already in effect to prohibit genetic discrimination in areas, such as housing;
mortgage lending; employment; education; and public accommodations. CalGINA
provides broader protections from genetic discrimination than does the federal
Genetic Information Nondiscrimination Act (GINA) of 2008, which is limited to
employment and health insurance coverage. This Alert focuses on
CalGINA's potential impact on employers in California.
California and federal laws already prohibit employers
and businesses from discriminating against individuals on the basis of race,
gender, age, religion and disability, among other protected classifications. In
a statement detailing Senate Bill 559, CalGINA, State Sen. Alex Padilla
(D-Pacoima) said, "Discrimination on the basis of genetic information is
no less offensive than discrimination based on race, gender, or sexual
orientation." "California has a compelling interest in promoting and
fostering the medical promise of genomics while relieving the fear of
discrimination by strengthening laws to prevent it." Genomic sequencing is
quickly approaching the point where it will be widely affordable to the general
public and, potentially, a covered insurance benefit.
Senator Padilla sponsored CalGINA in the wake of its
federal predecessor, GINA, which took effect on November 21, 2009. Title II of
GINA prohibits the use of genetic information in making decisions related to
any terms, conditions or privileges of employment. GINA also prohibits covered
entities from intentionally acquiring genetic information; requires
confidentiality with respect to genetic information; and prohibits employers from
retaliating against individuals who complain about acquisition, use or
disclosure of their genetic information or the genetic information of their
family members. (See Alert,
December 9, 2009.) In November 2010, the U.S. Equal Employment Opportunity
Commission (EEOC) published its final regulations for Title II of GINA,
codified at 29 C.F.R. Part 1635, which took effect on January 10, 2011. (See Alert,
November 22, 2010.)
Amendment of the California Fair Employment
and Housing Act
Of relevance to California employers, CalGINA amends the
California Fair Employment and Housing Act (FEHA) (Cal. Gov't Code, § 12920 et
seq.). FEHA protects the right and opportunity of all persons to seek,
obtain and hold employment, regardless of the person's race, religious creed,
color, national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age or sexual orientation. On these
bases, an employer cannot refuse to hire or employ a person; exclude a person
from a training program; harass; discharge a person from employment; or
discriminate against a person in compensation or in terms, conditions or
privileges of employment. Employers should also take all reasonable steps
necessary to prevent discrimination and harassment from occurring.
CalGINA adds "genetic information" as a
prohibited basis for discrimination. "Genetic information" means,
with respect to any individual, information about: (1) the individual's genetic
tests; (2) the genetic tests of family members of the individual; or (3) the
manifestation of a disease or disorder in family members of the individual.
This includes any request for or receipt of genetic services, or participation
in clinical research that includes genetic services, by an individual or any
family member of the individual. Genetic information does not include
information about a person's sex or age.
Before filing a lawsuit under FEHA for genetic or any
other type of discrimination, an employee needs to exhaust her administrative
remedies with the California Department of Fair Employment and Housing.
Damages for Genetic Discrimination
The remedies available under FEHA may be considerably
greater than under GINA. In a civil action under FEHA, the employee may recover
unlimited monetary damages, such as back pay; future lost earnings;
emotional distress damages; punitive damages; and attorneys' fees and costs,
including expert witness fees. By comparison, damages under GINA are the same
as those available under Title VII of the Civil Rights Act of 1964 and are
limited to reinstatement, hiring, promotion, back pay, injunctive relief, and
pecuniary and non-pecuniary damages (including compensatory and punitive
damages, together capped at between $50,000 and $300,000, depending on the size
of the employer). Thus, an employer liable for genetic discrimination under
California law may be required to pay damages in excess of those available
under federal law.
What Does CalGINA Mean for California
For California employers, the differences between GINA
and CalGINA will not impact those who are already in compliance with GINA. Ways
to ensure compliance with both laws include the following:
For Further Information
If you have any questions about this Alert or
would like more information, please contact any member
of the Employment,
Labor, Benefits and Immigration Practice Group or the attorney in the firm
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