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The Uncertain Privacy of Genetic Information, and How It Could Affect New Jersey Employees

Employment discrimination on the basis of genetic information is an important area of law that has not received as much attention as other forms of discrimination. This is partly because the laws protecting against genetic information discrimination have not been on the books very long. At the federal level, the Genetic Information Nondiscrimination Act (GINA) of 2008 prohibits various types of discrimination in employment and health insurance. The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination by employers based on specific genetic traits. This area of law is likely to gain prominence as a wider range of genetic information becomes available. Multiple companies conduct genetic testing to provide genealogy information to consumers. They are then able to use those consumers’ genetic information in a variety of ways that are not well understood. Privacy laws and consumer contracts are likely to play as important a role as employment statutes in New Jersey and around the country. If you have questions of this nature, reach out to a New Jersey employment discrimination attorney.

GINA defines “genetic information” as information obtained from “genetic tests” of an individual or their family members, or from “the manifestation of a disease or disorder in family members of such individual.” 42 U.S.C. § 2000ff(4)(A). It defines a “genetic test” as “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites,” provided that it is able to “detect genotypes, mutations, or chromosomal changes.” Id. at § 2000ff(7). The statute prohibits discrimination by employers based on genetic information, using language that is similar to the prohibitions on employment discrimination found in Title VII of the Civil Rights Act of 1964. Id. at §§ 2000ff-1(a), 2000e-2(a).

Under the NJLAD, an employer commits an “unlawful employment practice” if they discriminate on the basis of an “atypical hereditary cellular or blood trait of any individual,” or an individual’s “refusal to submit to a genetic test or make available the results of a genetic test to an employer.” N.J. Rev. Stat. § 10:5-12(a). The statute specifically identifies the following traits: “sickle cell trait, hemoglobin C trait, thalassemia trait, Tay-Sachs trait, or cystic fibrosis trait.” Id. at §§ 10:5-5(x)-(cc). Its definition of “genetic test” is similar to the one found in GINA. Id. at § 10:5-5(pp).

Privacy of online information is—or should be—a major concern for social media users. People share large amounts of personal information on various social media platforms on a daily basis, often without much understanding of security risks. Identity theft is perhaps the biggest concern, but that typically involves unlawful access to personal information by third parties. Online companies voluntarily provide users’ personal information to third parties all the time, often for compensation. The possibility that these third parties might misuse the information is a lesser-known concern.

The Federal Trade Commission (FTC) is reportedly investigating companies that offer genetic testing services to consumers. The possibility that genetic information provided to these companies could affect employment is among the concerns expressed by consumers to the FTC. GINA sets limits on how employers may request and obtain employees’ genetic information, but those limits may not always cover the types of information available from these companies.

If you and your employer are involved in a dispute in New Jersey or New York, the employment attorneys at the Resnick Law Group are here to help you. Please contact us today at 973-781-1204, at 646-867-7997, or online to schedule a confidential consultation with a member of our team.

More Blog Posts:

New Jersey Court Clarifies Liability for Violations of Statute Governing Consumer Background Reports, The New Jersey Employment Law Firm Blog, June 2, 2017

EEOC Settles Genetic Discrimination Lawsuit for $125,000, The New Jersey Employment Law Firm Blog, January 6, 2017

Plaintiffs in Genetic Information Discrimination Case Obtain $2.2 Million Verdict Against Employer, The New Jersey Employment Law Firm Blog, August 24, 2015

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