The simple answer is no. GINA is concerned primarily with protecting those individuals who may be discriminated against because an employer thinks they are at increased risk of acquiring a condition in the future. Someone who is discriminated against because she actually has breast cancer or another condition would not be protected by GINA, even if the condition has a genetic basis. While this distinction may initially seem counterintuitive, it is important for employers to understand that GINA prohibits employment decisions based on genetic information; it does not prohibit discrimination on the basis of an employee’s current diseases or conditions that are genetically based.

For example, GINA does not protect an employee who is discriminated against because s/he has sickle-cell anemia, a genetic disease. The ADA may provide such protection if sickle-cell anemia meets the definition of “disability” under the ADA. EEOC: Background Information on EEOC Final Rule on Title II of GINA, question 7. However, GINA does protect an employee who is discriminated against on the basis of the employee’s genetic predisposition to develop sickle-cell anemia at some point in the future. Put differently, in contrast to the ADA, GINA prohibits employer discrimination based on genetic information, not on the basis of a manifested condition, while the ADA prohibits discrimination of manifested conditions that meet the definition of “disability.” 29 CFR 1635.12.

For more information regarding GINA or any other important federal statute, please contact Robert Seybert at rseybert@baylorevnen.com or any of the firm’s employment law attorneys at (402) 475-1075.